[Federal Register Volume 75, Number 115 (Wednesday, June 16, 2010)]
[Rules and Regulations]
[Pages 34220-34248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14069]



[[Page 34219]]

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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 2010; Final Rule

  Federal Register / Vol. 75, No. 115 / Wednesday, June 16, 2010 / 
Rules and Regulations  

[[Page 34220]]


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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 170 and 171

 NRC-2009-0333
RIN 3150-AI70


Revision of Fee Schedules; Fee Recovery for FY 2010

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 the 
NRC to recover through fees approximately 90 percent of its budget 
authority in fiscal year (FY) 2010, not including amounts appropriated 
from the Nuclear Waste Fund (NWF), amounts appropriated for Waste 
Incidental to Reprocessing (WIR), and amounts appropriated for generic 
homeland security activities. Based on the Energy and Water Development 
and Related Agencies Appropriation Act, 2010, signed by the President 
on October 28, 2009, the NRC's required fee recovery amount for the FY 
2010 budget is approximately $912.2 million. After accounting for 
billing adjustments, the total amount to be billed as fees is 
approximately $911.1 million.

DATES: Effective Date: August 16, 2010.

ADDRESSES: The comments received on the proposed rule and the NRC's 
work papers that support these final changes to 10 CFR parts 170 and 
171 are available from the following locations:
    Federal e-Rulemaking Portal: Go to http://www.regulations.gov and 
search for documents filed under Docket ID NRC-2009-0333. Address 
questions about NRC dockets to Carol Gallagher, 301-492-3668; e-mail 
[email protected].
    NRC's Public Document Room (PDR): The public may examine and have 
copied for a fee publicly available documents at the NRC's PDR, Room O1 
F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland.
    NRC's Agencywide Documents Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC are 
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain 
entry into ADAMS, which provides text and image files of NRC's public 
documents. If you do not have access to ADAMS or if there are problems 
in accessing the documents located in ADAMS, contact the NRC's PDR 
reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Renu Suri, Office of the Chief 
Financial Officer, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001; telephone 301-415-0161, e-mail [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background
II. Response to Comments
III. Final Action
    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
    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
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. Congressional Review Act

I. Background

    The NRC is required each year, under OBRA-90 (42 U.S.C. 2214), as 
amended, to recover approximately 90 percent of its budget authority 
through fees to NRC licensees and applicants, not including the 
following non-fee items: amounts appropriated from the NWF, amounts 
appropriated for WIR, and amounts appropriated for generic homeland 
security activities. The NRC receives 10 percent of its budget 
authority (not including non-fee items) from the general fund each year 
to pay for the cost of agency activities that do not provide a direct 
benefit to NRC licensees, such as international assistance and 
Agreement State activities (as defined under section 274 of the Atomic 
Energy Act of 1954, as amended).
    The NRC assesses two types of fees to meet the requirements of 
OBRA-90. First, user fees, presented 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 cost of providing special benefits 
to identifiable applicants and licensees. For example, the NRC assesses 
these fees to cover the cost of inspections, applications for new 
licenses and license renewals, and requests for license amendments. 
Second, annual fees, presented in 10 CFR part 171 under the authority 
of OBRA-90, recover generic regulatory costs not otherwise recovered 
through 10 CFR part 170 fees.
    Based on Pub. L. 111-85, the NRC's required fee recovery amount for 
the FY 2010 budget is approximately $912.2 million, which is reduced by 
approximately $1.1 million to account for billing adjustments (i.e., 
expected unpaid invoices, payments for prior year invoices), resulting 
in a total of approximately $911.1 million to be billed as fees in FY 
2010.
    In accordance with OBRA-90, $22.2 million of the agency's budgeted 
resources for generic homeland security activities are excluded from 
the NRC's fee base in FY 2010. These funds cover generic activities 
such as rulemakings and the development of guidance documents that 
support entire license fee classes or classes of licensees. Under its 
IOAA authority, the NRC will continue to charge part 170 fees for all 
licensee-specific homeland security-related services provided, 
including security inspections and security plan reviews.
    The amount of the NRC's required fee collections is set by law, and 
is, therefore, outside the scope of this rulemaking. In FY 2010, the 
NRC's total fee recovery amount has increased by $41.5 million from FY 
2009, mostly in response to increased activities for reactor oversight, 
new reactor programs, information technology support, homeland security 
issues, and licensing reviews for fuel facilities, non-power reactors 
and spent fuel storage. The FY 2010 budget was allocated to the fee 
classes that the budgeted activities support. As such, the annual fees 
for power reactor, most fuel facility, uranium recovery, and small 
materials licensees have increased. Another factor affecting the amount 
of annual fees for each fee class is the estimated collection under 
part 170, discussed in Section III, ``Final Action'', of this document.

II. Response to Comments

    The NRC published the FY 2010 proposed fee rule on March 10, 2010 
(75 FR 11375) to solicit public comment on its proposed revisions to 10 
CFR parts 170 and 171. By the close of the comment period (April 9, 
2010), the NRC received six comments and one comment thereafter, for a 
total of seven comments that were considered in this fee rulemaking. 
The comments have been grouped by issues and are addressed in a 
collective response.

[[Page 34221]]

A. Specific Part 171 Issues

1. Fuel Facilities Annual Fee Increase
    Comment. Some commenters were concerned about the increase in 
annual fees. For fee category 1.A.(1)(b), Low Enriched Uranium Fuel, 
one commenter noted that the increase appears disproportionate to the 
overall increase for FY 2010 annual fee. Another commenter requested 
NRC to reconsider the increase in annual fee for the fee category Gas 
Centrifuge Enrichment Demonstration, because the risk of their facility 
licensed under 1.A.(2)(b) is very low relative to other operating fuel 
cycle facilities.
    Response. Annual fees fluctuate from year to year based on a number 
of factors, including the budgeted resources for a license fee class. 
The higher FY 2010 fee is primarily due to an increase in total 
budgeted resources allocated to the fuel facilities fee class for 
increased support for environmental reviews, and licensing amendments 
and renewals for existing fuel fabrication facilities. Because annual 
fees must recover all budgeted resources for a fee class not recovered 
through part 170 fees, annual fees for all facilities in the fee class 
are impacted by the lower part 170 fee collections estimate for FY 
2010. A higher fee-relief adjustment and low-level waste (LLW) 
surcharge for this fee class also increased the annual fee.
    The commenter requests reconsideration of their annual fee because 
their facility poses a lower risk relative to other fuel facilities due 
to the small amount of the radioactive material, uranium hexafluoride, 
that it is authorized to possess and because it has not deployed all 
the machines that are authorized in the license issued to the facility. 
However, the NRC is unable to change the fee for the following reasons. 
The NRC is mandated to recover most of its budget resources through 
fees based on the costs of providing regulatory services. Under NRC's 
methodology established through public notice and comment rulemaking 
(64 FR 31448; June 10, 1999) the total budgeted resources for fuel 
facilities are allocated to individual fuel facility fee categories 
based on the effort/fee determination matrix, which was described in 
detail in the FY 2010 proposed fee rule. Although a licensee 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. The NRC continues to believe that an 
effort/fee determination matrix, based on the commensurate level of 
regulatory effort related to the various fuel facility categories from 
a safety and safeguards perspective, results in annual fees that 
accurately reflect the current costs of providing generic and other 
regulatory services to each fuel facility type. As they do each year, 
the NRC's fuel facility project managers and regulatory analysts 
reviewed the safety and safeguards effort factors and did not make any 
changes for fee category 1.A.(2)(b). Therefore, the NRC is retaining 
the effort/fee determination matrix as outlined in the proposed rule. 
The Commission will continue to review these factors and make changes, 
as appropriate.
2. Uranium Recovery Annual Fees
    Comment: Some commenters were concerned that the percentage 
increase in uranium recovery fees is greater than the fee increase for 
power reactors.
    Response. Annual fees fluctuate from year to year based on a number 
of factors, including the budgeted resources for a license fee class. 
As stated in the proposed rule, the increase in the FY 2010 total 
required annual fee recovery amount for uranium recovery licensees is 
mainly due to increased budget resources allocated to support uranium 
recovery legal and program infrastructure. In addition, the FY 2010 
fee-relief adjustment amount is an additional charge compared to a 
reduction in FY 2009. For more discussion on the fee-relief adjustment, 
refer to Section III.B.1. of this final rule.
    In response to the concern that the proposed fee structure favors 
power reactors at the expense of other licensees, the NRC disagrees. 
The agency is mandated to recover most of its budget resources through 
fees. The NRC complies with this law by calculating fees based on 
allocation of budget resources to each fee class. The NRC strives to 
ensure that the fees are equitable and fair to each class of licensees. 
This is why in FY 2010, as noted in the March 2010 proposed fee rule, 
generic budgeted resources supporting applications for new uranium 
recovery facilities are excluded from the calculation of annual fee 
charged to current uranium recovery licensees. Instead these resources 
are included in the calculation of fee charged to operating reactors 
and fuel facility licensees because they will potentially benefit from 
increased production of the uranium milled by the new facilities. The 
NRC's annual fees for the uranium recovery licensees reflect the 
budgeted cost of NRC's regulatory services for this class of licensees.
3. Agreement State Activities
    Comment. Some commenters expressed concern about the impact on NRC 
materials program licensees once additional states beyond the State of 
New Jersey become Agreement States.
    Response. This concern has been largely addressed by legislation. 
To address fairness and equity concerns associated with licensees 
paying for the cost of activities that do not directly benefit them, 
the FY 2001 Energy and Water Development Appropriations Act amended 
OBRA-90 to decrease the NRC's fee recovery amount to 90 percent 
beginning in FY 2005. In response to concerns about decreasing numbers 
of NRC licensees as more states become Agreement States, the NRC notes 
that the fee calculation methodology considers the percentage of 
licensees in Agreement States in establishing fees for the materials 
users fee class. As explained in the proposed fee rule, the budgeted 
resources providing support to Agreement States or their licensees are 
included in total fee-relief costs, which are offset by the 10 percent 
non-fee recoverable funding (fee relief) provided by Congress. For 
example, if the NRC develops a rule, guidance document, or a tracking 
system that is associated with or otherwise benefits Agreement State 
licensees, the costs of these activities are prorated to the fee-relief 
activities according to the percentage of licensees in that fee class 
in Agreement States (e.g., if 85 percent of materials users licensees 
are in Agreement States, 85 percent of these regulatory infrastructure 
costs are included in the fee-relief category). To the extent that the 
10 percent fee relief is insufficient to cover the total cost of all 
fee-relief activities, these remaining costs are spread to all 
licensees based on their percentage of the budget.

B. Other Issues

1. Fee Increases Are Inconsistent With Current Economic Conditions
    Comment. Some commenters stated that the NRC fees are increasing in 
spite of the fact that the country is experiencing economic downturn. 
The commenters recommended revising the fees to be in line with 
inflation. They also expressed concern that the NRC hourly rate is 
extremely high.
    Response. The NRC acknowledges that an increase in fees is more 
difficult to absorb in the current economic downturn. In compliance 
with OBRA-90, as amended, NRC's fees are calculated to recover 90 
percent of its approved budget. Any adjustments in fees to align it 
with the rate of inflation

[[Page 34222]]

or other external factors could result in NRC's not recovering 90 
percent of its budget and thus not complying with the law. As such, the 
purpose of the FY 2010 fee rulemaking, as with prior year fee 
rulemakings, is to establish fees in a fair and transparent manner to 
recover the required portion of the NRC's budget.
    In response to the comment on the high hourly rate, the NRC's rate 
is calculated to recover all the budgeted costs supporting the services 
provided under part 170, including all programmatic and agency 
overhead, which is consistent with the full cost recovery concept 
emphasized in the Office of Management and Budget's Circular No. A-25, 
``User Charges.'' The NRC did not receive any comments suggesting ways 
to revise its hourly rate calculation methodology, and comments on this 
fee rule and other rulemakings have consistently supported the NRC's 
efforts to collect more of its budget through part 170 fees-for-
services rather than part 171 annual fees. As discussed in the proposed 
rule, the increase in the hourly rate is due to the higher budget 
necessary for supporting increased infrastructure and support costs for 
the new reactors program, fuel facility reviews, reactor licensing 
renewal, international activities, and spent fuel storage and 
transportation activities. Therefore, the NRC is retaining the hourly 
rate formula as presented in the FY 2010 proposed rule.
2. Hold an Annual Public Meeting To Share Fee Projections
    Comment. Some commenters expressed an interest in an annual public 
meeting early in the year with NRC stakeholders to share information on 
the budget request and its impact on the future fees.
    Response. The NRC's Congressional Budget Justification is submitted 
to Congress in early February for review and approval by the U.S. 
Congress and is publicly available at that time. An Appendix in this 
document provides an estimate of fees. The current document (NUREG-
1100, Volume 26) can be viewed on NRC's Web site http://www.nrc.gov. 
The proposed fee rule for the current fiscal year is published 
subsequent to the submittal of the Congressional document. The 
Commission acknowledges the importance of this information to a 
licensee's budget but cannot provide predecisional policies or certain 
administrative fee-related information until the proposed fee rule is 
published. The timing of a periodic meeting will depend on the timing 
of the budget process, publication of the proposed rule, and NRC staff 
availability.
3. Performance Based Licensing
    Comment. Some commenters recommended expansion of performance based 
licensing and the increased use of Safety and Environment Review Panel 
(SERP) to help in reducing review costs/hourly charges for uranium 
recovery facilities.
    Response. The NRC currently allows changes to a facility and tests 
through a SERP as part of a performance based license condition (PBLC). 
However, to use the PBLC, the licensee must not undertake an activity 
that falls outside the scope of the safety and environmental reviews 
already performed at a particular site. The scope of a SERP review is, 
therefore, necessarily limited to what is already known and reviewed 
about a particular site, i.e. to information that cannot change.
    The use of a SERP would have no effect on the uranium recovery 
facility annual fee because these fees are based on the generic 
activities that are not charged to a particular licensee, but to the 
industry as a whole. Furthermore, as noted previously, generic costs 
for the new uranium recovery facilities in FY 2010 were allocated to 
the operating power reactors and fuel facilities. A SERP would also 
have no effect on inspections and license renewal costs because the NRC 
must perform those functions. Most license amendments are of a nature 
that cannot be addressed by a SERP because of the necessary limitations 
that are placed on performance based licensing. Amendments such as 
expansions (i.e., new satellites and plant upgrades), restarts, surety 
updates, process changes, toll milling, and change-of-control comprise 
the majority of amendments that the staff reviews. None of these 
amendments can be addressed using a SERP. Therefore, the Commission 
disagrees that the use of a SERP can be expanded to the point where 
hourly or annual fees would substantively decrease.

III. Final Action

    The NRC is amending its licensing, inspection, and annual fees to 
recover approximately 90 percent of its FY 2010 budget authority less 
the appropriations for non-fee items. The NRC's total budget authority 
for FY 2010 is $1,066.9 million. The non-fee items include $29.0 
million appropriated from the NWF, $2.1 million for WIR activities, and 
$22.2 million for generic homeland security activities. Based on the 90 
percent fee-recovery requirement, the NRC will have to recover 
approximately $912.2 million in FY 2010 through part 170 licensing and 
inspection fees and part 171 annual fees. The amount required by law to 
be recovered through fees for FY 2010 is $41.5 million more than the 
amount estimated for recovery in FY 2009, an increase of approximately 
5 percent.
    The FY 2010 fee recovery amount is reduced by $1.1 million to 
account for billing adjustments (i.e., for FY 2010 invoices that the 
NRC estimates will not be paid during the fiscal year, less payments 
received in FY 2010 for prior year invoices). This leaves approximately 
$911.1 million to be billed as fees in FY 2010 through part 170 
licensing and inspection fees and part 171 annual fees.
    Table I summarizes the budget and fee recovery amounts for FY 2010. 
(Individual values may not sum to totals due to rounding.)

          Table I--Budget and Fee Recovery Amounts For FY 2010
                          [Dollars in millions]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Total Budget Authority..................................        $1,066.9
Less Non-Fee Items......................................           -53.3
                                                         ---------------
    Balance.............................................        $1,013.6
Fee Recovery Rate for FY 2010...........................             90%
Total Amount to be Recovered for FY 2010................          $912.2
    Less Part 171 Billing Adjustments:
    Unpaid FY 2010 Invoices (estimated).................             2.1
    Less Payments Received in FY 2010 for Prior Year                -3.2
     Invoices (estimated)...............................
                                                         ---------------
        Subtotal........................................            -1.1
Amount to be Recovered Through Parts 170 and 171 Fees...          $911.1

[[Page 34223]]

 
    Less Estimated Part 170 Fees........................          -357.3
Part 171 Fee Collections Required.......................          $553.8
------------------------------------------------------------------------

    In this final rule, NRC amends fees for the power reactors, non-
power reactors, some fuel facilities and small materials users, and 
DOE's Transportation license. The changes to the annual fee are 
primarily due to updated part 170 collections estimate. The NRC updated 
the part 170 collections estimate based on the latest billing data 
available, adjusted for FY 2010 budget changes, as appropriate. The 
total part 170 collections estimate for FY 2010 final rule decreased by 
approximately $6.7 million compared to the proposed rule, primarily for 
the operating reactors and spent fuel storage/reactors in 
decommissioning classes of licensees resulting in a greater amount to 
be recovered through annual fees from these licensees. The NRC 
estimates that $357.3 million will be recovered from part 170 fees in 
FY 2010 which represents an increase of approximately seven percent 
compared to $332.6 million in part 170 collections during FY 2009. The 
change for each class of licensees affected is discussed in Section 
III.B.3., below.
    The FY 2010 final fee rule is a ``major rule'' as defined by the 
Congressional Review Act of 1996 (5 U.S.C. 801-808). Therefore, the 
NRC's fee schedules for FY 2010 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 reactor licensees, 
10 CFR part 72 licensees, major fuel cycle facilities, and other 
licensees with annual fees of $100,000 or more, upon publication of the 
FY 2010 final rule. For these licensees, payment is due on the 
effective date of the FY 2010 final rule. Because these licensees are 
billed quarterly, the payment due is the amount of the total FY 2010 
annual fee, less payments made in the first three quarters of the 
fiscal year.
    Materials licensees with annual fees of less than $100,000 are 
billed annually. Those materials licensees whose license anniversary 
date during FY 2010 falls before the effective date of the FY 2010 
final rule will be billed for the annual fee during the anniversary 
month of the license at the FY 2009 annual fee rate. Those materials 
licensees whose license anniversary date falls on or after the 
effective date of the FY 2010 final rule will be billed for the annual 
fee at the FY 2010 annual fee rate during the anniversary month of the 
license, and payment will be due on the date of the invoice.
    The NRC currently does not routinely mail the final fee rule to 
licensees, but will send the final rule to any licensee or other person 
upon specific request. To request a copy, contact the Accounts 
Receivable and Payable Branch, Division of the Controller, 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://www.regulations.gov.
    The NRC plans to review its fee policies for power reactors. The 
NRC anticipates that it will receive applications to license small and 
medium sized commercial nuclear reactors. The NRC published an Advance 
Notice of Final Rulemaking (ANPR) on March 25, 2009 (74 FR 12735) to 
receive early input from the public on issues relevant to the 
establishment of an annual fee structure based on the size of the 
reactor. The NRC received sixteen comments in response to the ANPR. The 
general consensus from the commenters is that an adjustment to the 
current power reactor annual fee methodology is needed to account for 
small and medium sized power reactors. The NRC plans to analyze 
suggested methodologies for a variable annual fee structure for power 
reactors and present its findings in a future rule.
    The NRC is changing its current policy with regard to billing 
inspection costs. Currently, inspection costs are billed only after the 
inspection is completed (i.e., approximately 30 days after the 
inspection report is issued). As a result, in some cases inspection 
costs accumulate over several billing cycles, and the licensee receives 
one invoice for these accumulated costs rather than being billed as the 
costs are incurred. Therefore, the NRC will bill for accumulated 
inspection costs each quarter. Billing for incurred inspection costs 
will begin in the first quarter of FY 2011, when the NRC's new 
accounting system is implemented. This policy change does not require a 
revision to part 170.
    The NRC is amending 10 CFR parts 170 and 171, as follows:

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

    In FY 2010, the NRC is increasing the hourly rate to recover the 
full cost of activities under part 170 and is using this rate to 
calculate ``flat'' application fees.
    The NRC is making the following changes:
1. Hourly Rate
    The NRC's hourly rate is used in assessing full cost fees for 
specific services provided, as well as flat fees for certain 
application reviews. The NRC is changing the FY 2010 hourly rate to 
$259. This rate would be applicable to all activities for which fees 
are assessed under Sec. Sec.  170.21 and 170.31. The FY 2010 hourly 
rate is higher than the FY 2009 hourly rate of $257. The increase is 
primarily due to the higher FY 2010 budget supporting increased 
infrastructure and support costs for the new reactors program, fuel 
facility reviews, reactor licensing renewal, international activities, 
spent fuel storage, and transportation activities. The hourly rate 
calculation is described in further detail in the following paragraphs.
    The NRC's hourly rate is derived by dividing the sum of recoverable 
budgeted resources for (1) Mission direct program salaries and 
benefits; (2) mission indirect salaries and benefits and contract 
activity; and (3) agency management and support and the Inspector 
General (IG), by mission direct full-time equivalent (FTE) hours. The 
mission direct FTE hours are the product of the mission direct FTE 
times the hours per direct FTE. The only budgeted resources excluded 
from the hourly rate are those for mission direct contract activities.
    In FY 2010, the NRC is using 1,371 hours per direct FTE, the same 
amount as FY 2009, to calculate the hourly fees. The NRC has reviewed 
data from its time and labor system to determine if the annual direct 
hours worked per direct FTE estimate requires updating for the FY 2010 
fee rule. Based on this review of the most recent data available, the 
NRC determined that 1,371 hours is the best estimate of direct hours 
worked annually per direct FTE. This estimate

[[Page 34224]]

excludes all indirect activities such as training, general 
administration, and leave.
    Table II shows the results of the hourly rate calculation 
methodology. (Individual values may not sum to totals due to rounding.)

                Table II--FY 2010 Hourly Rate Calculation
                          [Dollars in millions]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Mission Direct Program Salaries & Benefits..............          $343.8
Mission Indirect Salaries & Benefits, and Contract                $135.6
 Activity...............................................
Agency Management and Support, and the IG...............          $330.4
                                                         ---------------
    Subtotal............................................          $809.8
Less Offsetting Receipts................................           -$0.0
                                                         ---------------
    Total Budget Included in Hourly Rate................          $809.8
Mission Direct FTEs.....................................           2,276
Professional Hourly Rate (Total Budget Included in                  $259
 Hourly Rate divided by Mission Direct FTE Hours).......
------------------------------------------------------------------------

    As shown in Table II, dividing the $809.8 million budgeted amount 
(rounded) included in the hourly rate by total mission direct FTE hours 
(2,276 FTE times 1,371 hours) results in an hourly rate of $259. The 
hourly rate is rounded to the nearest whole dollar.
2.``Flat'' Application Fee Changes
    The NRC is adjusting the current flat application fees in 
Sec. Sec.  170.21 and 170.31 to reflect the revised hourly rate of 
$259. These flat fees are calculated by multiplying the average 
professional staff hours needed to process the licensing actions by the 
professional hourly rate for FY 2010. The agency estimates the average 
professional staff hours needed to process licensing actions every 
other year as part of its biennial review of fees performed in 
compliance with the Chief Financial Officers Act of 1990. This review 
was last performed as part of the FY 2009 fee rulemaking. The higher 
hourly rate of $259 is the main reason for the increase in application 
fees.
    The amounts of the materials licensing flat fees are rounded so 
that the fees would be convenient to the user and the effects of 
rounding would be minimal. 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.
    The licensing flat fees are applicable for fee categories K.1. 
through K.5. of Sec.  170.21, and fee categories 1.C., 1.D., 2.B., 
2.C., 3.A. through 3.S., 4.B. through 9.D., 10.B., 15.A. through 15.R., 
16, and 17 of Sec.  170.31. Applications filed on or after the 
effective date of the FY 2010 final fee rule would be subject to the 
revised fees in the final rule.
3. Administrative Amendments
    In the FY 2009 final rule, Sec.  170.11, regarding fee exemptions 
for special projects, was changed to simplify the language. In the FY 
2010 final rule, the NRC is modifying the introductory text of 
paragraph (a)(1) to clarify that this paragraph applies to special 
projects. There is no change to the NRC's fee exemption policy.
    In addition, the NRC is updating some of the program codes found 
next to the materials users fee categories in Sec.  170.31. The program 
codes were added in the FY 2008 final rule, and the NRC plans to update 
the program codes as needed.
    In summary, the NRC is making the following changes to 10 CFR part 
170:
    1. Establish a revised professional hourly rate to use in assessing 
fees for specific services;
    2. Revise the license application fees to reflect the FY 2010 
hourly rate; and
    3. Make certain administrative changes for purposes of updating 
some program codes and improving the clarity of the rule.

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 will recover its fee-relief shortfall by increasing all 
licensees' annual fees. This rulemaking also makes changes to the 
number of NRC licensees and to establish rebaselined annual fees based 
on Public Law 111-85. The amendments are described as follows:
1. Application of Fee-Relief and Low-Level Waste Surcharge
    The NRC will recover its fee-relief shortfall by increasing all 
licensees' annual fees, based on their percent of the budget.
    The NRC applies the 10 percent of its budget that is excluded from 
fee recovery under OBRA-90, as amended (fee relief), to offset the 
total budget allocated for activities which do not directly benefit 
current NRC licensees. The budget for these fee-relief activities is 
totaled and then reduced by the amount of the NRC's fee relief. Any 
difference between the fee relief and the budgeted amount of these 
activities results in a fee-relief adjustment (increase or decrease) to 
all licensees' annual fees, based on their percent of the budget (i.e., 
over 80 percent is allocated to power reactors each year).
    In FY 2010, the NRC's 10 percent fee relief is less than the total 
budget for fee-relief activities by $7.1 million. In FY 2009, the 10 
percent fee relief exceeded the total budget by $3.2 million. The FY 
2010 budget for fee-relief activities is higher than FY 2009, primarily 
due to an increase in small entity subsidies, non-profit educational 
exemptions, and regulatory support to Agreement States.
    The NRC is increasing all licensees' annual fees to recover the 
shortfall amount of $7.1 million, based on their percent of the fee 
recoverable budget authority. This is consistent with the existing fee 
methodology, in that the fee-relief shortfall amount is allocated to 
licensees in the same manner as benefits are allocated as a reduction 
when the NRC receives enough fee relief to pay for fee-relief 
activities. In FY 2010, the power reactors class of licensees will be 
allocated approximately 88 percent of the fee-relief shortfall based on 
their share of the NRC fee recoverable budget authority.
    The FY 2010 budgeted resources for NRC's fee-relief activities are 
$108.5 million. The NRC's total fee relief in FY 2010 is $101.4 
million, leaving a $7.1 million fee-relief shortfall to be recovered by 
increasing all licensees' annual fees. These values are shown in Table 
III. (Individual values may not sum to totals due to rounding.)

[[Page 34225]]



                    Table III--Fee-Relief Activities
                          [Dollars in millions]
------------------------------------------------------------------------
                                                              FY 2010
                  Fee-relief activities                   Budgeted costs
------------------------------------------------------------------------
1. Activities not attributable to an existing NRC
 licensee or class of licensee:
    a. International activities.........................           $18.2
    b. Agreement State oversight........................            11.2
    c. Scholarships and Fellowships.....................            15.0
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                      17.4
     institutions.......................................
    b. Costs not recovered from small entities under 10              6.1
     CFR 171.16(c)......................................
    c. Regulatory support to Agreement States...........            23.1
    d. Generic decommissioning/reclamation (not related             15.1
     to the power reactor and spent fuel storage fee
     classes)...........................................
    e. In situ leach rulemaking and unregistered general             2.4
     licensees..........................................
                                                         ---------------
        Total fee-relief activities.....................           108.5
Less 10 percent of NRC's FY 2010 total budget (less non-          -101.4
 fee items).............................................
Fee-Relief Adjustment to be Allocated to All Licensees'              7.1
 Annual Fees............................................
------------------------------------------------------------------------

    Table IV shows how the NRC is allocating the $7.1 million fee-
relief adjustment to each license fee class. As explained previously, 
the NRC is allocating this fee-relief adjustment to each license fee 
class based on the percent of the budget for that fee class compared to 
the NRC's total budget. The fee-relief adjustment is added to the 
required annual fee recovery from each fee class.
    Separately, the NRC has continued to allocate the LLW surcharge 
based on the volume of LLW disposal of three classes of licenses: 
Operating reactors, fuel facilities, and materials users. Table IV also 
shows the allocation of the LLW surcharge activity. Because LLW 
activities support NRC licensees, the costs of these activities are 
recovered through annual fees. For FY 2010, the total budget allocated 
for LLW activity is $2.3 million. (Individual values may not sum to 
totals due to rounding.)

                    Table IV--Allocation Of Fee-Relief Adjustment and LLW Surcharge, FY 2010
                                              [Dollars in millions]
----------------------------------------------------------------------------------------------------------------
                                                       LLW Surcharge         Fee-Relief adjustment      Total
                                                ----------------------------------------------------------------
                                                   Percent         $         Percent         $            $
----------------------------------------------------------------------------------------------------------------
Operating Power Reactors.......................         54.0         $1.3         87.8         $6.3         $7.5
Spent Fuel Storage/Reactor Decommissioning.....           --           --          2.7          0.2          0.2
Test and Research Reactors.....................           --           --          0.2          0.0          0.0
Fuel Facilities................................         15.0          0.3          5.5          0.4          0.7
Materials Users................................         31.0          0.7          2.6          0.2          0.9
Transportation.................................           --           --          0.5          0.0          0.0
Uranium Recovery...............................           --           --          0.7          0.1          0.1
                                                ----------------------------------------------------------------
    Total......................................        100.0          2.3        100.0          7.1          9.5
----------------------------------------------------------------------------------------------------------------

2. Agreement State Activities
    New Jersey became the 37th Agreement State, effective September 30, 
2009. Materials licenses transferred to a new Agreement State are 
terminated by the NRC. New Jersey assumed regulatory authority for 
approximately 500 former NRC licensees. A larger share of the generic 
budget resources for small materials licensees has been allocated to 
the Regulatory Support to Agreement States fee-relief category to 
mitigate the impact on the annual fee for the remaining small materials 
NRC licensees, as seen in Table III.
    Note that the continuing costs of oversight and regulatory support 
for the State of New Jersey, as for any other Agreement State, are 
recovered as fee-relief activities, consistent with existing policy. 
The budgeted resources for the regulatory support of Agreement State 
licensees are prorated to the fee-relief activity based on the percent 
of total licensees in Agreement States. The NRC has updated the 
proration percentage in its fee calculation to ensure that resources 
are allocated equitably between the NRC materials users fee class and 
the regulatory support to Agreement States fee-relief category. 
Accordingly, as a result of the State of New Jersey becoming an 
Agreement State, the NRC has increased the percentage of materials 
users regulatory support costs prorated to the fee-relief activity from 
85 percent in FY 2009 to 87 percent in FY 2010. The resources for 
licensing and inspection activities supporting NRC licensees in the 
materials users fee class are not prorated to the fee-relief activity.
3. Revised Annual Fees
    The NRC is revising its annual fees in Sec. Sec.  171.15 and 171.16 
for FY 2010 to recover approximately 90 percent of the NRC's FY 2010 
budget authority, after subtracting the non-fee amounts and the 
estimated amount to be recovered through part 170 fees. The part 170 
collections estimate for this final rule increased by $23.4 million 
from the FY 2009 fee rule, based on the latest invoice data available. 
The total amount to be recovered through annual fees for FY 2010 is 
$553.8 million. The required annual fee collection in FY 2009 was 
$532.6 million.

[[Page 34226]]

    The Commission has determined (71 FR 30721; May 30, 2006) that the 
agency should proceed with a presumption in favor of rebaselining when 
calculating annual fees each year. Under this method, the NRC's budget 
is analyzed in detail and budgeted resources are allocated to fee 
classes and categories of licensees. The Commission expects that most 
years there will be budgetary and other changes that warrant the use of 
the rebaselining method.
    As compared with FY 2009 annual fees, rebaselined fees are higher 
for five classes of licensees (power reactors, spent fuel storage/
reactor decommissioning, transportation, uranium recovery and materials 
users), and lower for one class of licensees (non-power reactors). 
Within the fuel facilities fee class, annual fees for most licensees 
increase, while the annual fee for one fee category decreases.
    The NRC's total fee recoverable budget, as mandated by law, is 
approximately $41.5 million larger in FY 2010 as compared with FY 2009. 
Much of this increase is in response to increased activities for 
reactor oversight, new reactor programs, information technology 
support, homeland security issues, and licensing reviews for fuel 
facilities, non-power reactors, and spent fuel storage. The FY 2010 
budget was allocated to the fee classes that the budgeted activities 
support. As in FY 2009, generic NRC resources supporting new uranium 
recovery applications are included in the budget allocated to operating 
power reactors and fuel facility fee classes, because these licensees 
will potentially benefit from increased production of uranium milled by 
new uranium recovery facilities. The impact of this allocation on the 
operating reactors and fuel facilities annual fees is less than one 
percent.
    The factors affecting all annual fees include the distribution of 
budgeted costs to the different classes of licenses (based on the 
specific activities the NRC will perform in FY 2010), the estimated 
part 170 collections for the various classes of licenses, and 
allocation of the fee-relief adjustment to all fee classes. The 
percentage of the NRC's budget not subject to fee recovery remained at 
10 percent from FY 2009 to FY 2010.
    Table V shows the rebaselined annual fees for FY 2010 for a 
representative list of categories of licenses. The FY 2009 fee is also 
shown for comparative purposes.

                    Table V--Rebaselined Annual Fees
------------------------------------------------------------------------
                                          FY2009  Annual      FY 2010
       Class/category of licenses               fee         Annual fee
------------------------------------------------------------------------
Operating Power Reactors (Including           $4,625,000      $4,784,000
 Spent Fuel Storage/Reactor
 Decommissioning Annual Fee)............
Spent Fuel Storage/Reactor                       122,000         148,000
 Decommissioning........................
Test and Research Reactors (Non-power             87,600          81,700
 Reactors)..............................
High Enriched Uranium Fuel Facility.....       4,691,000       5,439,000
Low Enriched Uranium Fuel Facility......       1,649,000       2,047,000
UF6 Conversion Facility.................         969,000       1,111,000
Conventional Mills......................          31,200          38,300
Typical Materials Users:
    Radiographers (Category 3O).........          22,700          28,200
    Well Loggers (Category 5A)..........           9,700          11,900
    Gauge Users (Category 3P)...........           3,700           4,500
    Broad Scope Medical (Category 7B)...          36,300          45,100
------------------------------------------------------------------------

    The work papers that 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 reports included in these work papers 
summarize the FY 2010 budgeted FTE and contract dollars allocated to 
each fee class and fee-relief category at the planned activity and 
program level and compare these allocations to those used to develop 
the final FY 2009 fees. The work papers are available electronically at 
http://www.regulations.gov by searching on Docket ID: NRC-2009-0333 and 
at the NRC's Electronic Reading Room on the Internet at Web site 
address http://www.nrc.gov/reading-rm/adams.html. The work papers may 
also be examined at the NRC PDR located at One White Flint North, Room 
O-1F22, 11555 Rockville Pike, Rockville, Maryland.
    The budgeted costs allocated to each class of licenses and the 
calculations of the rebaselined fees are described in paragraphs a. 
through h. of this section. Individual values in the Tables presented 
in this section may not sum to totals due to rounding.
a. Fuel Facilities
    The FY 2010 budgeted cost to be recovered in the annual fees 
assessment to the fuel facility class of licenses [which includes 
licensees in fee categories 1.A.(1)(a), 1.A.(1)(b), 1.A.(2)(a), 
1.A.(2)(b), 1.A.(2)(c), 1.E., and 2.A.(1), under Sec.  171.16] is 
approximately $28.8 million. This value is based on the full cost of 
budgeted resources associated with all activities that support this fee 
class, which is reduced by estimated part 170 collections and adjusted 
for allocated generic transportation resources and fee-relief. In FY 
2010, the LLW surcharge for fuel facilities is added to the allocated 
fee-relief adjustment (see Table IV in Section III.B.1., ``Application 
of Fee-Relief and Low-Level Waste Surcharge'' of this document). The 
summary calculations used to derive this value are presented in Table 
VI for FY 2010, with FY 2009 values shown for comparison. (Individual 
values may not sum to totals due to rounding.)

      Table VI--Annual Fee Summary Calculations for Fuel Facilities
                          [Dollars in millions]
------------------------------------------------------------------------
        Summary Fee Calculations           FY 2009 Final   FY 2010 Final
------------------------------------------------------------------------
Total budgeted resources................           $44.6           $48.8
Less estimated part 170 receipts........           -22.0           -21.2
                                         -------------------------------
    Net part 171 resources..............            22.6            27.6

[[Page 34227]]

 
Allocated generic transportation........            +0.4            +0.5
Fee-relief adjustment/LLW surcharge.....            +0.2            +0.7
Billing adjustments.....................            -0.2            -0.1
                                         -------------------------------
    Total required annual fee recovery..            23.0            28.8
------------------------------------------------------------------------

    The increase in total budgeted resources allocated to this fee 
class from FY 2009 to FY 2010 is primarily due to increased support for 
environmental reviews and for licensing amendments and renewals for 
existing fuel fabrication facilities. This is partially offset by 
reductions in fuel facility inspections and licensing and inspection 
activities for enrichment facilities. In the final rule, due to a small 
decrease ($16,000) in the generic transportation resources allocated to 
fuel facility fee class, the FY 2010 annual fee for some of the 
facilities decreased slightly from the proposed rule.
    The total required annual fee recovery amount is allocated to the 
individual fuel facility licensees, based on the effort/fee 
determination matrix developed for the FY 1999 final fee rule (64 FR 
31447; June 10, 1999). In the matrix included in the publicly available 
NRC work papers, licensees are grouped into categories according to 
their licensed activities (i.e., nuclear material enrichment, 
processing operations, and material form) and 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 (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. Second, 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.
    Each year, the NRC's fuel facility project managers and regulatory 
analysts determine the level of effort associated with regulating each 
of these facilities. This is done by assigning, for each fuel facility, 
separate effort factors for the safety and safeguards activities 
associated with each type of regulatory activity. The matrix includes 
ten types of regulatory activities, including enrichment and scrap/
waste-related activities (see the work papers for the complete list). 
Effort factors are assigned as follows: one (low regulatory effort), 
five (moderate regulatory effort), and ten (high regulatory effort). 
These effort factors are then totaled for each fee category, so that 
each fee category has a total effort factor for safety activities and a 
total effort factor for safeguards activities.
    The effort factors for the various fuel facility fee categories are 
summarized in Table VII. The value of the effort factors shown, as well 
as the percent of the total effort factor for all fuel facilities, 
reflects the total regulatory effort for each fee category (not per 
facility). Note that the total effort factors for the High Enriched 
Uranium Fuel (HEU), Low Enriched Uranium Fuel (LEU), Hot Cell and 
Uranium Enrichment fee categories have increased from FY 2009, while 
the Limited Operations fee category decreased from FY 2009. The safety 
and safeguards factors increased in FY 2010 to reflect process changes, 
such as emphasis on emergency planning, ongoing uranium enrichment 
activities, and a new facility in the Uranium Enrichment fee category. 
The safety factor decreases for Low Enriched Uranium Fuel and Limited 
Operations fee categories in FY 2010 reflect the lower level of safety 
issues at two facilities. Taking into account the addition of a new 
facility, the total safety and safeguards effort factor change is 
relatively small.

                             Table VII--Effort Factors for Fuel Facilities, FY 2010
----------------------------------------------------------------------------------------------------------------
                                                                                   Effort factors  (percent of
                                                                  Number of                  total)
                 Facility Type (fee category)                     facilities   ---------------------------------
                                                                                     Safety         Safeguards
----------------------------------------------------------------------------------------------------------------
High Enriched Uranium Fuel (1.A.(1)(a))......................               2        89 (32.5)        97 (44.3)
Low Enriched Uranium Fuel (1.A.(1)(b)).......................               3        70 (25.5)        35 (16.0)
Limited Operations (1.A.(2)(a))..............................               1          8 (2.9)          4 (1.8)
Gas Centrifuge Enrichment Demonstration (1.A.(2)(b)).........               1          3 (1.1)         15 (6.8)
Hot Cell (1.A.(2)(c))........................................               1          6 (2.2)          3 (1.4)
Uranium Enrichment (1.E).....................................               3        86 (31.4)        58 (26.5)
UF6 Conversion (2.A.(1)).....................................               1         12 (4.4)          7 (3.2)
----------------------------------------------------------------------------------------------------------------


[[Page 34228]]

    For FY 2010, the total budgeted resources for safety activities, 
before the fee-relief adjustment is made, is $15,613,008. This amount 
is allocated to each fee category based on its percent of the total 
regulatory effort for safety activities. For example, if the total 
effort factor for safety activities for all fuel facilities is 100, and 
the total effort factor for safety activities for a given fee category 
is 10, that fee category will be allocated 10 percent of the total 
budgeted resources for safety activities. Similarly, the budgeted 
resources amount of $12,479,010 for safeguards activities is allocated 
to each fee category based on its percent of the total regulatory 
effort for safeguards activities. The fuel facility fee class' portion 
of the fee-relief adjustment ($740,003) is allocated to each fee 
category based on its percent of the total regulatory effort for both 
safety and safeguards activities. The annual fee per licensee is then 
calculated by dividing the total allocated budgeted resources for the 
fee category by the number of licensees in that fee category. The fee 
(rounded) for each facility is summarized in Table VIII.

               Table VIII--Annual Fees for Fuel Facilities
------------------------------------------------------------------------
            Facility type (fee category)              FY 2010 Annual fee
------------------------------------------------------------------------
High Enriched Uranium Fuel (1.A.(1)(a)).............          $5,439,000
Low Enriched Uranium Fuel (1.A.(1)(b))..............           2,047,000
Limited Operations Facility (1.A.(2)(a))............             702,000
Gas Centrifuge Enrichment Demonstration (1.A.(2)(b))           1,053,000
Hot Cell (and others) (1.A.(2)(c))..................             526,000
Uranium Enrichment (1.E.)...........................           2,807,000
UF6 Conversion (2.A.(1))............................           1,111,000
------------------------------------------------------------------------

    The NRC expects to authorize operation of one new uranium 
enrichment facility in FY 2010. The annual fee applicable to any type 
of new uranium enrichment facility is the annual fee in Sec.  171.16, 
fee category 1.E., Uranium Enrichment, unless the NRC establishes a new 
fee category for the facility in a subsequent rulemaking. The 
applicable annual fee for a facility that is authorized to operate 
during the FY will be prorated in accordance with the provisions of 
Sec.  171.17.
b. Uranium Recovery Facilities
    The total FY 2010 budgeted costs to be recovered through annual 
fees assessed to the uranium recovery class [which includes licensees 
in fee categories 2.A.(2)(a), 2.A.(2)(b), 2.A.(2)(c), 2.A.(2)(d), 
2.A.(2)(e), 2.A.(3), 2.A.(4), 2.A.(5) and 18.B., under Sec.  171.16], 
is approximately $0.91 million. The derivation of this value is shown 
in Table IX, with FY 2009 values shown for comparison purposes. 
(Individual values may not sum to totals due to rounding.)

     Table IX--Annual Fee Summary Calculations for Uranium Recovery
                               Facilities
                          [Dollars in millions]
------------------------------------------------------------------------
    Summary fee calculations         FY 2009 Final       FY 2010 Final
------------------------------------------------------------------------
Total budgeted resources........               $7.21               $6.69
Less estimated part 170 receipts              - 6.64              - 5.83
                                 ---------------------------------------
    Net part 171 resources......                0.57                0.86
Allocated generic transportation                 N/A                 N/A
Fee-relief adjustment...........              - 0.03              + 0.05
Billing adjustments.............              - 0.03              - 0.01
                                 ---------------------------------------
    Total required annual fee                   0.51                0.91
     recovery...................
------------------------------------------------------------------------

    The increase in the total required annual fee recovery is mainly 
due to increased support for uranium recovery legal and program 
infrastructure and the increased fee-relief adjustment, which was a 
reduction in FY 2009. As in FY 2009, the NRC is excluding the generic 
budgeted resources supporting applications for new uranium recovery 
facilities from the FY 2010 annual fee charged to current uranium 
recovery licensees. Because operating reactors and fuel facility 
licensees would potentially benefit from increased production of the 
uranium milled by the new facilities, the budgeted resources would be 
allocated to these fee classes. The generic resources supporting the 
new uranium recovery facilities do not benefit the existing uranium 
recovery licensees. In the final rule, there were no changes to the 
fees for this class of licensees.
    Since FY 2002, the NRC has computed the annual fee for the uranium 
recovery fee class by allocating the total annual fee amount for this 
fee class between the Department of Energy (DOE) and the other 
licensees in this fee class. The NRC regulates DOE's Title I and Title 
II activities under the Uranium Mill Tailings Radiation Control Act 
(UMTRCA). The Congress established the two programs, Title I and Title 
II under UMTRCA, to protect the public and the environment from uranium 
milling. The UMTRCA Title I program is for remedial action at abandoned 
mill tailings sites where tailings resulted largely from production of 
uranium for the weapons program. The NRC also regulates DOE's UMTRCA 
Title II program which is directed toward uranium mill sites licensed 
by the NRC or Agreement States in or after 1978.
    In FY 2010, 35 percent of the total annual fee amount, less 
$419,769 specifically budgeted for Title I activities, is allocated to 
DOE's UMTRCA facilities. The budgeted resources for Title I activities 
increased in FY 2010 primarily due to additional Title I sites. The 
remaining 65 percent of the total annual fee (less the amounts 
specifically budgeted for Title I activities) is allocated to other 
licensees. This is the same as in FY 2009. The remaining $317,000 
(rounded) would be recovered through annual fees assessed to the other 
licensees in this fee class (i.e., conventional uranium mills and heap 
leach facilities, uranium solution mining and resin in-situ recovery 
(ISR) facilities, mill tailings disposal facilities (11e.(2) disposal 
facilities), and uranium water treatment facilities).
    The annual fee assessed to DOE includes recovery of the costs 
specifically budgeted for NRC's Title I activities, plus 35 percent of 
the remaining annual fee amount, including

[[Page 34229]]

the fee-relief and generic/other costs, for the uranium recovery class. 
The remaining 65 percent of the fee-relief and generic/other costs are 
assessed to the other NRC licensees in this fee class that are subject 
to annual fees. The costs to be recovered through annual fees assessed 
to the uranium recovery class are shown in Table X.

Table X--Costs Recovered Through Annual Fees; Uranium Recovery Fee Class
------------------------------------------------------------------------
 
------------------------------------------------------------------------
DOE Annual Fee Amount (UMTRCA Title I and Title II)
 general licenses:
    UMTRCA Title I budgeted costs...................            $419,769
    35 percent of generic/other uranium recovery                 151,950
     budgeted costs.................................
    35 percent of uranium recovery fee-relief                   + 18,519
     adjustment.....................................
                                                     -------------------
        Total Annual Fee Amount for DOE (rounded)...             590,000
Annual Fee Amount for Other Uranium Recovery
 Licenses:
    65 percent of generic/other uranium recovery                 282,193
     budgeted costs less the amounts specifically
     budgeted for Title I activities................
    65 percent of uranium recovery fee-relief                   + 34,393
     adjustment.....................................
                                                     -------------------
        Total Annual Fee Amount for Other Uranium                316,586
         Recovery Licenses..........................
------------------------------------------------------------------------

    The NRC will continue to use a matrix (which is included in the 
supporting work papers) to determine the level of effort associated 
with conducting the generic regulatory actions for the different (non-
DOE) licensees in this fee class. The weights derived in this matrix 
are used to allocate the approximately $317,000 annual fee amount to 
these licensees. The use of this uranium recovery annual fee matrix was 
established in the FY 1995 final fee rule (60 FR 32217; June 20, 1995). 
The FY 2010 matrix is described as follows.
    First, the methodology identifies the categories of licenses 
included in this fee class (besides DOE). In FY 2010, these categories 
are conventional uranium mills and heap leach facilities, uranium 
solution mining and resin ISR facilities, mill tailings disposal 
facilities (11e.(2) disposal facilities), and uranium water treatment 
facilities.
    Second, the matrix identifies the types of operating activities 
that support and benefit these licensees. In FY 2010, the activities 
related to generic decommissioning/reclamation are not included in the 
matrix, because they are included in the fee-relief activities. 
Therefore, they are not a factor in determining annual fees. The 
activities included in the FY 2010 matrix are operations, waste 
operations, and groundwater protection. The relative weight of each 
type of activity is then determined, based on the regulatory resources 
associated with each activity. The operations, waste operations, and 
groundwater protection activities have weights of 0, 5, and 10, 
respectively, in the FY 2010 matrix.
    Each year, the NRC determines the level of benefit to each licensee 
for generic uranium recovery program activities for each type of 
generic activity in the matrix. This is done by assigning, for each fee 
category, separate benefit factors for each type of regulatory activity 
in the matrix. Benefit factors are assigned on a scale of 0 to 10 as 
follows: Zero (no regulatory benefit), five (moderate regulatory 
benefit), and ten (high regulatory benefit). These benefit factors are 
first multiplied by the relative weight assigned to each activity 
(described previously). Total benefit factors by fee category, and per 
licensee in each fee category, are then calculated. These benefit 
factors thus reflect the relative regulatory benefit associated with 
each licensee and fee category. The NRC expects to license an In Situ 
Recovery Resin Facility in FY 2010. Therefore, the benefit factors for 
fee category 2.A.(2)(d) have been included in the FY 2010 matrix, and 
an annual fee has been established.
    The benefit factors per licensee and per fee category, for each of 
the non-DOE fee categories included in the uranium recovery fee class, 
are as follows:

                        Table XI--Benefit Factors for Uranium Recovery Licenses, FY 2010
----------------------------------------------------------------------------------------------------------------
                                              Number of      Benefit factor                      Benefit factor
              Fee category                    licensees       per licensee       Total value      percent total
----------------------------------------------------------------------------------------------------------------
Conventional and Heap Leach mills.......                 1               200               200                12
Basic In Situ Recovery facilities.......                 5               190               950                57
Expanded In Situ Recovery facilities....                 1               215               215                13
In Situ Recovery Resin Facilities.......                 1               180               180                11
11e.(2) disposal incidental to existing                  1                65                65                 4
 tailings sites.........................
Uranium water treatment.................                 1                45                45                 3
                                         -----------------------------------------------------------------------
                                          ................  ................             1,655  ................
----------------------------------------------------------------------------------------------------------------

    Applying these factors to the approximately $317,000 in budgeted 
costs to be recovered from non-DOE uranium recovery licensees results 
in the total annual fees for each fee category. The annual fee per 
licensee is calculated by dividing the total allocated budgeted 
resources for the fee category by the number of licensees in that fee 
category, as summarized in Table XII:

[[Page 34230]]



          Table XII--Annual Fees for Uranium Recovery Licensees
                            [Other than DOE]
------------------------------------------------------------------------
            Facility type (fee category)              FY 2010 Annual fee
------------------------------------------------------------------------
Conventional and Heap Leach mills (2.A.(2)(a))......             $38,300
Basic In Situ Recovery facilities (2.A.(2)(b))......              36,300
Expanded In Situ Recovery facilities (2.A.(2)(c))...              41,100
In Situ Recovery Resin facilities (2.A.(2)(d))......              34,400
11e.(2) disposal incidental to existing tailings                  12,400
 sites (2.A.(4))....................................
Uranium water treatment (2.A.(5))...................               8,600
------------------------------------------------------------------------

c. Operating Power Reactors
    The $482.1 million in budgeted costs to be recovered through FY 
2010 annual fees assessed to the power reactor class was calculated as 
shown in Table XIII. FY 2009 values are shown for comparison. 
(Individual values may not sum to totals due to rounding.)

Table XIII--Annual Fee Summary Calculations for Operating Power Reactors
                          [Dollars in millions]
------------------------------------------------------------------------
      Summary fee calculations          FY 2009 Final     FY 2010 Final
------------------------------------------------------------------------
Total budgeted resources............            $761.5            $787.3
Less estimated part 170 receipts....            -288.8            -312.5
                                     -----------------------------------
    Net part 171 resources..........             472.7             474.8
Allocated generic transportation....              +0.9              +0.8
Fee-relief adjustment/LLW surcharge.              -1.6              +7.5
Billing adjustments.................              -3.6              -1.0
                                     -----------------------------------
    Total required annual fee                    468.3             482.1
     recovery.......................
------------------------------------------------------------------------

    The budgeted costs to be recovered through annual fees to power 
reactors are divided equally among the 104 power reactors licensed to 
operate. This results in a FY 2010 annual fee of $4,636,000 per 
reactor, of which approximately $72,200 is the fee-relief adjustment/
LLW surcharge. Additionally, each power reactor licensed to operate 
would be assessed the FY 2010 spent fuel storage/reactor 
decommissioning annual fee of $148,000 which results in a total FY 2010 
annual fee of $4,784,000 for each power reactor licensed to operate. 
The part 170 collections estimate for the final rule decreased by 
approximately $6.2 million compared with the proposed rule primarily 
due to decreased billing for work related to new applications. As a 
result, the annual fee for each power reactor in the final rule 
increased by approximately 1.3 percent compared to the proposed rule.
    The annual fee for power reactors is higher in FY 2010 than in FY 
2009, primarily due to increased budgeted resources for licensing, 
international, oversight, and new reactor activities, and the increased 
fee-relief adjustment, which was a reduction in FY 2009. This increase 
is partially offset by a decrease in budgeted resources for incident 
response activities and higher estimated part 170 collections. The 
annual fees for power reactors are presented in Sec. 171.15.
d. Spent Fuel Storage/Reactor Decommissioning
    For FY 2010, budgeted costs of approximately $18.2 million for 
spent fuel storage/reactor decommissioning are to be recovered through 
annual fees assessed to 10 CFR 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. Table XIV shows the calculation of this annual fee 
amount. FY 2009 values are shown for comparison. (Individual values may 
not sum to totals due to rounding.)

 Table XIV--Annual Fee Summary Calculations for the Spent Fuel Storage/
                    Reactor Decommissioning Fee Class
                          [Dollars in millions]
------------------------------------------------------------------------
      Summary fee calculations          FY 2009 Final     FY 2010 Final
------------------------------------------------------------------------
Total budgeted resources............             $21.1             $24.1
Less estimated part 170 receipts....              -6.1              -6.4
                                     -----------------------------------
    Net part 171 resources..........              15.0              17.7
Allocated generic transportation....              +0.2              +0.4
Fee-relief adjustment...............              -0.1              +0.2
Billing adjustments.................              -0.1               0.0
                                     -----------------------------------
    Total required annual fee                     15.1              18.2
     recovery.......................
------------------------------------------------------------------------


[[Page 34231]]

    The required annual fee recovery amount is divided equally among 
123 licensees, resulting in a FY 2010 annual fee of $148,000 per 
licensee. The value of total budgeted resources for this fee class is 
higher in FY 2010 than in FY 2009, due to increased budgeted resources 
for information technology and legal support and for spent fuel storage 
licensing and certification activities. This increase is partially 
offset by a decrease in reactor decommissioning inspection and 
licensing activities. The part 170 collections estimate for the final 
rule decreased by approximately eight percent due to decreased billings 
which resulted in a higher FY 2010 annual fee compared with the 
proposed rule.
e. Test and Research Reactors (Non-power Reactors)
    Approximately $330,000 in budgeted costs is to be recovered through 
annual fees assessed to the test and research reactor class of licenses 
for FY 2010. Table XV summarizes the annual fee calculation for test 
and research reactors for FY 2010. FY 2009 values are shown for 
comparison. (Individual values may not sum to totals due to rounding.)

Table XV--Annual Fee Summary Calculations for Test and Research Reactors
                          [Dollars in millions]
------------------------------------------------------------------------
      Summary fee calculations          FY 2009 Final     FY 2010 Final
------------------------------------------------------------------------
Total budgeted resources............             $1.22             $1.31
Less estimated part 170 receipts....             -0.87             -1.01
                                     -----------------------------------
    Net part 171 resources..........              0.35              0.30
Allocated generic transportation....             +0.01             +0.01
Fee-relief adjustment...............             -0.00             +0.01
Billing adjustments.................             -0.01             -0.00
                                     -----------------------------------
    Total required annual fee                     0.35              0.33
     recovery.......................
------------------------------------------------------------------------

    This required annual fee recovery amount is divided equally among 
the four test and research reactors subject to annual fees and results 
in a FY 2010 annual fee of $81,700 for each licensee. The decrease in 
annual fees from FY 2009 to FY 2010 is due to a higher part 170 revenue 
estimate for license renewal activity. In the final rule, annual fee 
for the test and research reactors decreased slightly compared to the 
proposed rule due to a small decrease ($450) in generic transportation 
resources allocated to this fee class.
f. Rare Earth Facilities
    The agency does not anticipate receiving an application for a rare 
earth facility this fiscal year, so no budget resources are allocated 
to this fee class, and no annual fee will be published in FY 2010.
g. Materials Users
    Table XVI shows the calculation of the FY 2010 annual fee amount 
for materials users licensees. FY 2009 values are shown for comparison. 
Note the following fee categories under Sec.  171.16 are included in 
this fee class: 1.C., 1.D., 2.B., 2.C., 3.A. through 3.S., 4.A. through 
4.C., 5.A., 5.B., 6.A., 7.A. through 7.C., 8.A., 9.A. through 9.D., 16, 
and 17. (Individual values may not sum to totals due to rounding.)

     Table XVI--Annual Fee Summary Calculations for Materials Users
                          [Dollars in millions]
------------------------------------------------------------------------
      Summary fee calculations          FY 2009 Final     FY 2010 Final
------------------------------------------------------------------------
Total budgeted resources............             $28.7             $28.8
Less estimated part 170 receipts....              -1.7              -1.8
                                     -----------------------------------
    Net part 171 resources..........              27.0              27.0
Allocated generic transportation....              +0.8              +0.8
Fee-relief adjustment/LLW surcharge.              +0.6              +0.9
Billing adjustments.................              -0.1              -0.0
                                     -----------------------------------
    Total required annual fee                     28.4              28.7
     recovery.......................
------------------------------------------------------------------------

    The total required annual fees to be recovered from materials 
licensees increases in FY 2010, mainly because of increases in the 
budgeted resources allocated to this fee class for legal support, 
information technology support, and enforcement activities. This is 
partially offset by a decrease in budgeted resources for licensing 
activities and higher estimated part 170 revenue resulting from the 
higher FY 2009 fees. Annual fees for all fee categories within the 
materials users fee class increase. The number of licensees decreased 
because of the transfer of licensees to the State of New Jersey, which 
became an Agreement State on September 30, 2009. In the final rule, 
annual fees for some licensees decrease slightly (fee categories 3.A., 
3.C., 3.G., 3.I., 4.C., 5.A., and 17) compared to the proposed rule 
because of a small decrease ($25,000) in the generic transportation 
resources allocated to this fee class.
    To equitably and fairly allocate the $28.7 million in FY 2010 
budgeted costs to be recovered in annual fees assessed to the 
approximately 3,150 diverse materials users licensees, the NRC will 
continue 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

[[Page 34232]]

allocating the generic and other regulatory costs to the diverse 
categories of licenses based on the NRC's cost to regulate each 
category. This 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 materials users 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 
million in general costs (including allocated generic transportation 
costs) and is 1.5 for FY 2010. The average inspection cost is the 
average inspection hours for each fee category multiplied by the hourly 
rate of $259. The inspection priority is the interval between routine 
inspections, expressed in years. The inspection multiplier is the 
multiple necessary to recover approximately $7.6 million in inspection 
costs, and is 2.2 for FY 2010. The unique category costs are any 
special costs that the NRC has budgeted for a specific category of 
licenses. For FY 2010, approximately $107,500 in budgeted costs for the 
implementation of revised 10 CFR part 35, Medical Use of Byproduct 
Material (unique costs) has been allocated to holders of NRC human use 
licenses.
    The annual fee to be assessed to each licensee also includes a 
share of the fee-relief adjustment of approximately $187,000 allocated 
to the materials users fee class (see Section III.B.1., ``Application 
of Fee-Relief and Low-Level Waste Surcharge,'' of this document), and 
for certain categories of these licensees, a share of the approximately 
$719,000 in LLW surcharge costs allocated to the fee class. The annual 
fee for each fee category is shown in Sec.  171.16(d).
h. Transportation
    Table XVII shows the calculation of the FY 2010 generic 
transportation budgeted resources to be recovered through annual fees. 
FY 2009 values are shown for comparison. (Individual values may not sum 
to totals due to rounding.)

     Table XVII--Annual Fee Summary Calculations for Transportation
                          [Dollars in millions]
------------------------------------------------------------------------
      Summary fee calculations          FY 2009 Final     FY 2010 Final
------------------------------------------------------------------------
Total budgeted resources............              $6.1              $6.6
Less estimated part 170 receipts....             -$2.9             -$3.3
                                     -----------------------------------
    Net part 171 resources..........              $3.1              $3.3
------------------------------------------------------------------------

    The NRC must approve any package used for shipping nuclear material 
before shipment. If the package meets NRC requirements, the NRC issues 
a Radioactive Material Package Certificate of Compliance (CoC) to the 
organization requesting approval of a package. Organizations are 
authorized to ship radioactive material in a package approved for use 
under the general licensing provisions of 10 CFR part 71. The resources 
associated with generic transportation activities are distributed to 
the license fee classes based on the number of CoCs benefitting (used 
by) that fee class, as a proxy for the generic transportation resources 
expended for each fee class.
    The total FY 2010 budgeted resources for generic transportation 
activities, including those to support DOE CoCs, are $3.3 million. The 
budgeted resources for these activities are higher in FY 2010 than in 
FY 2009, mostly due to an increase in budgeted resources for homeland 
security safeguards, licensing, and certification activities. Generic 
transportation resources associated with fee-exempt entities are not 
included in this total. These costs are included in the appropriate 
fee-relief category (e.g., the fee-relief category for nonprofit 
educational institutions). In the final rule, the part 170 collections 
estimate increased by approximately $105,000 due to increased billings. 
The higher part 170 collections estimate for Transportation results in 
a lower annual fee for the DOE in the final rule compared to the 
proposed rule.
    Consistent with the policy established in the NRC's FY 2006 final 
fee rule (71 FR 30721; May 30, 2006), the NRC will recover generic 
transportation costs unrelated to DOE as part of existing annual fees 
for license fee classes. The NRC will continue to assess a separate 
annual fee under Sec.  171.16, fee category 18.A., for DOE 
transportation activities. The amount of the allocated generic 
resources is calculated by multiplying the percentage of total CoCs 
used by each fee class (and DOE) by the total generic transportation 
resources to be recovered. Because of the increase in total budgeted 
resources for transportation, the generic transportation cost allocated 
to most fee classes is higher than the FY 2009 cost. Compared to the 
proposed rule, the generic transportation cost allocated to some fee 
classes decreased in the final rule. This resulted in decreases in 
annual fees for non-power reactors, fuel facilities, and some materials 
users.
    The distribution of these costs to be recovered through annual fees 
to the license fee classes and DOE is shown in Table XVIII. The 
distribution is adjusted to account for the licensees in each fee class 
that are fee-exempt. For example, if 3 CoCs benefit the entire test and 
research reactor class, but only 4 of 32 test and research reactors are 
subject to annual fees, the number of CoCs used to determine the 
proportion of generic transportation resources allocated to test and 
research reactor annual fees equals ((4/32)*3), or 0.4 CoCs.

                     Table XVIII--Distribution of Generic Transportation Resources, FY 2010
                                              [Dollars in millions]
----------------------------------------------------------------------------------------------------------------
                                                                                                    Allocated
                                                               Number CoCs      Percentage of        generic
                   License fee class/DOE                     benefiting fee      total CoCs      transportation
                                                              class or DOE                          resources
----------------------------------------------------------------------------------------------------------------
Total.....................................................              82.7             100.0             $3.28

[[Page 34233]]

 
DOE.......................................................              21.0              25.4              0.83
Operating Power Reactors..................................              19.0              23.0              0.75
Spent Fuel Storage/Reactor Decommissioning................               9.0              10.9              0.36
Test and Research Reactors................................               0.4               0.5              0.01
Fuel Facilities...........................................              13.0              15.7              0.52
Materials Users...........................................              20.3              24.5              0.80
----------------------------------------------------------------------------------------------------------------

    The NRC is proposing to continue to assess an annual fee to DOE 
based on the part 71 CoCs it holds and not allocate these DOE-related 
resources to other licensees' annual fees, because these resources 
specifically support DOE. Note that DOE's annual fee includes an 
increase for the fee-relief adjustment (see Section III.B.1, 
``Application of Fee-Relief and Low-Level Waste Surcharge,'' of this 
document), resulting in a total annual fee of $861,000 for FY 2010. 
This fee increase from last year is primarily due to an increase in 
budgeted resources for transportation activities and a higher 
percentage of the total number of CoCs. The FY 2010 final fee rule 
amount for DOE decreased by 2.8 percent compared to the proposed rule 
due to higher part 170 collections estimate used in the final rule.
4. Administrative Amendments
    The NRC is updating some of the program codes found next to the 
materials users fee categories in Sec.  171.16. The program codes were 
added in the FY 2008 final rule and the NRC plans to update the program 
codes as needed.
    In addition, the NRC is editing footnote 4 in Sec.  171.16 to use 
the same descriptive language that is used for fee category 2.A(f) 
``Other facilities'' that footnote 4 references. This does not change 
the meaning of footnote 4 but provides consistency.
    In summary, the NRC is--
    1. Recovering the NRC's fee-relief shortfall by increasing all 
licensees' annual fees, based on their percent of the NRC budget;
    2. Revising the number of NRC licensees to reflect that the State 
of New Jersey became an Agreement State effective September 30, 2009;
    3. Establishing rebaselined annual fees for FY 2010; and
    4. Making certain administrative changes for purposes of updating 
some program codes and providing rule consistency.

IV. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995 (15 
U.S.C. 3701) 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 2010, 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 rule. 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.).

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a request for information or an information collection 
requirement, unless the requesting document displays a currently valid 
OMB control number.

VII. Regulatory Analysis

    With respect to 10 CFR part 170, this final rule was developed 
under Title V of the 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 (DC 
Cir. 1976); National Association of Broadcasters v. Federal 
Communications Commission, 554 F.2d 1118 (DC Cir. 1976); Electronic 
Industries Association v. Federal Communications Commission, 554 F.2d 
1109 (DC Cir. 1976); and Capital Cities Communication, Inc. v. Federal 
Communications Commission, 554 F.2d 1135 (DC 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 of 1954, as amended, and with applicable 
regulations;

[[Page 34234]]

    (3) The NRC could charge for costs incurred in conducting 
environmental reviews required by the National Environmental Policy Act 
(42 U.S.C. 4321);
    (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 OBRA-90, which required that, for FYs 1991 through 1995, 
approximately 100 percent of the NRC budget authority, less 
appropriations from the NWF, 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 Appropriation Act (EWDAA) 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 was 90 percent in FY 2005. The FY 2006 
EWDAA extended this 90 percent fee recovery requirement for FY 2006. 
Section 637 of the Energy Policy Act of 2005 made the 90 percent fee 
recovery requirement permanent in FY 2007. As a result, the NRC is 
required to recover through fees approximately 90 percent of its FY 
2010 budget authority, less the amounts appropriated from the NWF and 
amounts appropriated for WIR and generic homeland security activities. 
To comply with this statutory requirement and in accordance with Sec.  
171.13, the NRC is publishing the amount of the FY 2010 annual fees for 
reactor licensees, fuel cycle licensees, materials licensees, and 
holders of CoCs, registrations of sealed source and devices, and 
Government agencies. OBRA-90, consistent with the accompanying 
Conference Committee Report, and the amendments to OBRA-90, provides 
that--
    (1) The annual fees will be based on approximately 90 percent of 
the Commission's FY 2010 budget of $1,066.9 million not including the 
following items: funds appropriated from the NWF to cover the NRC's 
high-level waste program, amounts appropriated for WIR and generic 
homeland security activities, and the amount of funds collected from 
part 170 fees;
    (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.
    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 (DC.Cir. 1988), cert. denied, 
490 U.S. 1045 (1989). Further, the NRC's FY 1991 annual fee rule 
methodology was upheld by the DC Circuit Court of Appeals in Allied 
Signal v. NRC, 988 F.2d 146 (DC Cir. 1993).

VIII. Regulatory Flexibility Analysis

    The NRC is required by the OBRA-90, as amended, to recover 
approximately 90 percent of its FY 2010 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 2010. This 
final rule results in increases in the annual fees charged to certain 
licensees and holders of certificates, registrations, and approvals, 
and in decreases in annual fees charged to 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 (SBREFA) 
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 2010.

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.

X. Congressional Review Act

    In accordance with the Congressional Review Act of 1996 (5 U.S.C. 
801-808), the NRC has determined that this action is a major rule and 
has verified the determination with the Office of Information and 
Regulatory Affairs of the Office of Management and Budget.

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: Section 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), sec. 623, Pub. L. 109-58, 119 Stat. 783 (42 U.S.C. 2201(w)); 
sec. 651(e), Pub. L. 109-58, 119 Stat. 806-810 (42 U.S.C. 2014, 
2021, 2021b, 2111).


0
2. In Sec.  170.11, the introductory text of paragraph (a)(1), is 
revised to read as follows:


Sec.  170.11  Exemptions.

    (a) * * *
    (1) A special project that is a request/report submitted to the 
NRC--
* * * * *

[[Page 34235]]


0
3. Section 170.20 is revised to read as follows:


Sec.  170.20  Average cost per professional staff-hour.

    Fees for permits, licenses, amendments, renewals, special projects, 
10 CFR part 55 re-qualification and replacement examinations and tests, 
other required reviews, approvals, and inspections under Sec. Sec.  
170.21 and 170.31 will be calculated using the professional staff-hour 
rate of $259 per hour.


0
4. In Sec.  170.21, in the table, fee category K is revised to read as 
follows:


Sec.  170.21  Schedule of fees for production and utilization 
facilities, review of standard referenced design approvals, special 
projects, inspections, and import and export licenses.

* * * * *

                        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; or               $16,900
         license exemption request......................
    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; or                $9,900
         license exemption request......................
    3. Application for export of components requiring
     the assistance of the Executive Branch to obtain
     foreign government assurances.
        Application--new license, or amendment; or                $4,200
         license exemption request......................
    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; or                $2,600
         license exemption request......................
    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.
        Minor amendment to license......................            $780
------------------------------------------------------------------------
\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, 10
  CFR 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.
\2\ Full cost fees will be determined based on the professional staff
  time and appropriate contractual support services expended. For
  applications currently on file and for which fees are determined based
  on the full cost expended for the review, the professional staff hours
  expended for the review of the application up to the effective date of
  the final rule will be determined at the professional rates in effect
  when the service was provided. For those applications currently on
  file for which review costs have reached an applicable fee ceiling
  established by the June 20, 1984 and July 2, 1990 rules, but are still
  pending completion of the review, the cost incurred after any
  applicable ceiling was reached through January 29, 1989 will not be
  billed to the applicant. Any professional staff-hours expended above
  those ceilings on or after January 30, 1989 will be assessed at the
  applicable rates established by Sec.   170.20, as appropriate, except
  for topical reports whose costs exceed $50,000. Costs which exceed
  $50,000 for any topical report, amendment, revision or supplement to a
  topical report completed or under review from January 30, 1989 through
  August 8, 1991 will not be billed to the applicant. Any professional
  hours expended on or after August 9, 1991 will be assessed at the
  applicable rate established in Sec.   170.20.
 * * * * * * *
\4\ Imports only of major components for end-use at NRC-licensed
  reactors are now authorized under NRC general import license.


0
5. In Sec. 170.31, the table 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.

* * * * *

                       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) [Program
         Code(s): 21130].
        (b) Low Enriched Uranium in Dispersible  Full Cost.
         Form Used for Fabrication of Power
         Reactor Fuel [Program Code(s): 21210].
    (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.
         [Program Code(s): 21310, 21320].
        (b) Gas centrifuge enrichment            Full Cost.
         demonstration facilities.
        (c) Others, including hot cell           Full Cost.
         facilities.

[[Page 34236]]

 
    B. Licenses for receipt and storage of       Full Cost.
     spent fuel and reactor-related Greater
     than Class C (GTCC) waste at an
     independent spent fuel storage
     installation (ISFSI) [Program Code(s):
     23200].
    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 [Program Code(s): 22140]...  $1,200
    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
     under Category 1.A.\4\
        Application [Program Code(s): 22110,     $2,400
         22111, 22120, 22131, 22136, 22150,
         22151, 22161, 22163, 22170, 23100,
         23300, 23310].
    E. Licenses or certificates for              Full Cost.
     construction and operation of a uranium
     enrichment facility [Program Code(s):
     21200].
2. Source material:
    A. (1) Licenses for possession and use of    Full Cost.
     source material for refining uranium mill
     concentrates to uranium hexafluoride
     [Program Code(s): 11400].
    (2) Licenses for possession and use of
     source material in recovery operations
     such as milling, in-situ recovery, 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) Conventional and Heap Leach          Full Cost.
         facilities [Program Code(s): 11100].
        (b) Basic In Situ Recovery facilities    Full Cost.
         [Program Code(s): 11500].
        (c) Expanded In Situ Recovery            Full Cost.
         facilities [Program Code(s): 11510].
        (d) In Situ Recovery Resin facilities    Full Cost.
         [Program Code(s): 11550].
        (e) Resin Toll Milling facilities        Full Cost.
         [Program Code(s): 11555].
        (f) Other facilities [Program Code(s):   Full Cost.
         11700].
    (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 2.A.(2) or Category 2.A.(4)
     [Program Code(s): 11600, 12000].
    (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 2.A.(2)
     [Program Code(s): 12010].
    (5) Licenses that authorize the possession   Full Cost.
     of source material related to removal of
     contaminants (source material) from
     drinking water [Program Code(s): 11820].
    B. Licenses which authorize the possession,
     use, and/or installation of source
     material for shielding.
        Application [Program Code(s): 11210]...  $570
    C. All other source material licenses......
        Application [Program Code(s): 11200,     $10,200
         11220, 11221, 11230, 11300, 11800,
         11810].
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 [Program Code(s): 03211,     $12,100
         03212, 03213].
    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 [Program Code(s): 03214,     $4,600
         03215, 22135, 22162].
    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 3.D.
        Application [Program Code(s): 02500,     $6,600
         02511, 02513].
    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.
     Sec.   170.11(a)(4).
        Application [Program Code(s): 02512,     $4,400
         02514].
    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 [Program Code(s): 03510,     $3,000
         03520].
    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 [Program Code(s): 03511]...  $6,100
    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 [Program Code(s): 03521]...  $29,000
    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 [Program Code(s): 03254,     $5,500
         03255].

[[Page 34237]]

 
    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 [Program Code(s): 03250,     $10,100
         03251, 03252, 03253, 03256].
    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 [Program Code(s): 03240,     $1,900
         03241, 03243].
    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 [Program Code(s): 03242,     $1,100
         03244].
    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 [Program Code(s): 01100,     $10,200
         01110, 01120, 03610, 03611, 03612,
         03613].
    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 [Program Code(s): 03620]...  $3,500
    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 3.P.; and
    (2) Licenses that authorize waste disposal
     services are subject to the fees specified
     in fee Categories 4.A., 4.B., and 4.C.
        Application [Program Code(s): 03219,     $6,100
         03225, 03226].
    O. Licenses for possession and use of
     byproduct material issued under part 34 of
     this chapter for industrial radiography
     operations.
        Application [Program Code(s): 03310,     $5,800
         03320].
    P. All other specific byproduct material
     licenses, except those in Categories 4.A.
     through 9.D.
        Application [Program Code(s): 02400,     $1,400
         02410, 03120, 03121, 03122, 03123,
         03124, 03220, 03221, 03222, 03800,
         03810, 22130].
    Q. Registration of a device(s) generally
     licensed under part 31 of this chapter.
        Registration...........................  $320
    R. Possession of items or products
     containing radium-226 identified in 10 CFR
     31.12 which exceed the number of items or
     limits specified in that section.\6\
    1. Possession of quantities exceeding the
     number of items or limits in 10 CFR
     31.12(a)(4), or (5) but less than or equal
     to 10 times the number of items or limits
     specified.
        Application [Program Code(s): 02700]...  $1,190
    2. Possession of quantities exceeding 10
     times the number of items or limits
     specified in 10 CFR 31.12(a)(4), or (5).
        Application [Program Code(s): 02710]...  $1,400
    S. Licenses for production of accelerator-
     produced radionuclides.
        Application [Program Code(s): 03210]...  $6,600
4. Waste disposal and processing:
    A. Licenses specifically authorizing the     Full Cost.
     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. [Program
     Code(s): 03231, 03233, 03235, 03236,
     06100, 06101].
    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 [Program Code(s): 03234]...  $4,500
    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 [Program Code(s): 03232]...  $4,700
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 [Program Code(s): 03110,     $3,400
         03111, 03112].
    B. Licenses for possession and use of
     byproduct material for field flooding
     tracer studies.
        Licensing [Program Code(s): 03113].....  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 [Program Code(s): 03218]...  $20,700
7. Medical licenses:

[[Page 34238]]

 
    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 gamma stereotactic
     radiosurgery units, teletherapy devices,
     or similar beam therapy devices.
        Application [Program Code(s): 02300,     $11,300
         02310].
    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. This
     category also includes the possession and
     use of source material for shielding when
     authorized on the same license.
        Application [Program Code(s): 02110]...  $8,100
    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 [Program Code(s): 02120,     $2,300
         02121, 02200, 02201, 02210, 02220,
         02230, 02231, 02240, 22160].
8. Civil defense:
    A. Licenses for possession and use of
     byproduct material, source material, or
     special nuclear material for civil defense
     activities.
        Application [Program Code(s): 03710]...  $1,190
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...............  $8,400
    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...............  $8,400
    C. Safety evaluation of sealed sources
     containing byproduct material, source
     material, or special nuclear material,
     except reactor fuel, for commercial
     distribution.
        Application--each source...............  $5,900
    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...............  $990
10. Transportation of radioactive material:
    A. Evaluation of casks, packages, and
     shipping containers.
    1. Spent Fuel, High-Level Waste, and         Full Cost.
     plutonium air packages.
    2. Other Casks.............................  Full Cost.
    B. Quality assurance program approvals
     issued under part 71 of this chapter.
    1. Users and Fabricators.
        Application............................  $3,200
        Inspections............................  Full Cost.
    2. Users.
        Application............................  $3,200
        Inspections............................  Full Cost.
    C. Evaluation of security plans, route       Full Cost.
     approvals, route surveys, and
     transportation security devices (including
     immobilization devices).
11. Review of standardized spent fuel            Full Cost.
 facilities.
12. Special projects:
    Including approvals, preapplication/         Full Cost.
     licensing activities, and inspections.
13. A. Spent fuel storage cask Certificate of    Full Cost.
 Compliance.
    B. Inspections related to storage of spent   Full Cost.
     fuel under Sec.   72.210 of this chapter.
14. A. Byproduct, source, or special nuclear     Full Cost.
 material 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  Full Cost.
     associated with unlicensed sites,
     regardless of whether or not the sites
     have been previously licensed.
15. Import and Export licenses:
    Licenses issued under part 110 of this
     chapter for the import and export only of
     special nuclear material, source material,
     tritium and other byproduct material, and
     the export only of heavy water, or nuclear
     grade graphite (fee categories 15.A.
     through 15.E.).
    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;  $16,900
         or license exemption request.
    B. Application for export or import of
     nuclear material, including radioactive
     waste, requiring Executive Branch review,
     but not Commission review. This category
     includes applications for the export and
     import of radioactive waste and requires
     NRC to consult with domestic host state
     authorities (i.e., Low-Level Radioactive
     Waste Compact Commission, the U.S.
     Environmental Protection Agency, etc.).
        Application--new license, or amendment;  $9,900
         or license exemption request.
    C. Application for export of nuclear
     material, for example, routine reloads of
     low enriched uranium reactor fuel and/or
     natural uranium source material requiring
     the assistance of the Executive Branch to
     obtain foreign government assurances.
        Application--new license, or amendment;  $4,200
         or license exemption request.

[[Page 34239]]

 
    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 applications 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;  $2,600
         or license exemption request.
    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.
        Minor amendment........................  $780
Licenses issued under part 110 of this chapter
 for the import and export only of Category 1
 and Category 2 quantities of radioactive
 material listed in Appendix P to part 110 of
 this chapter (fee categories 15.F. through
 15.R.).\5\
Category 1 Exports:
    F. Application for export of Category 1
     materials involving an exceptional
     circumstances review under 10 CFR
     110.42(e)(4).
        Application--new license, or amendment;  $16,900
         or license exemption request.
    G. Application for export of Category 1
     materials requiring Executive Branch
     review, Commission review, and/or
     government-to-government consent.
        Application--new license, or amendment;  $9,900
         or license exemption request.
    H. Application for export of Category 1
     materials requiring Executive Branch
     review and government-to-government
     consent.
        Application--new license, or amendment;  $6,200
         or license exemption request.
    I. Application for export of Category 1
     material requiring government-to-
     government consent.
        Application--new license, or amendment;  $5,200
         or license exemption request.
Category 2 Exports:
    J. Application for export of Category 2
     materials involving an exceptional
     circumstances review under 10 CFR
     110.42(e)(4).
        Application--new license, or amendment;  $16,900
         or license exemption request.
    K. Applications for export of Category 2
     materials requiring Executive Branch
     review and/or Commission review.
        Application--new license, or amendment;  $9,900
         or license exemption request.
    L. Application for the export of Category 2
     materials.
        Application--new license, or amendment;  $4,700
         or license exemption request.
Category 1 Imports:
    M. Application for the import of Category 1
     material requiring Commission review.
        Application--new license, or amendment;  $4,900
         or license exemption request.
    N. Application for the import of Category 1
     material.
        Application--new license, or amendment;  $4,200
         or license exemption request.
Category 2 Imports:
    O. Application for the import of Category 2
     material.
        Application--new license, or amendment;  $3,600
         or license exemption request.
Category 1 Imports with Agent and Multiple
 Licensees:
    P. Application for the import of Category 1
     material with agent and multiple licensees
     requiring Commission review.
        Application--new license, or amendment;  $5,700
         or license exemption request.
    Q. Application for the import of Category 1
     material with agent and multiple
     licensees.
        Application--new license, or amendment;  $4,700
         or license exemption request.
Minor Amendments (Category 1 and 2 Export and
 Imports):
    R. 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 authorities.
        Minor amendment........................  $780
16. Reciprocity:
    Agreement State licensees who conduct
     activities under the reciprocity
     provisions of 10 CFR 150.20.
        Application............................  $1,900
17. Master materials licenses of broad scope
 issued to Government agencies:
        Application............................  $73,800
18. Department of Energy:
    A. Certificates of Compliance. Evaluation    Full Cost.
     of casks, packages, and shipping
     containers (including spent fuel, high-
     level waste, and other casks, and
     plutonium air packages).
    B. Uranium Mill Tailings Radiation Control   Full Cost.
     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; issuances of new licenses and approvals; certain amendments
  and renewals to existing licenses and approvals; safety evaluations of
  sealed sources and devices; generally licensed device registrations;
  and certain inspections. The following guidelines apply to these
  charges:
(a) Application and registration fees. Applications for new materials
  licenses and export and import licenses; applications to reinstate
  expired, terminated, or inactive licenses, except those subject to
  fees assessed at full costs; applications filed by Agreement State
  licensees to register under the general license provisions of 10 CFR
  150.20; and applications for amendments to materials licenses that
  would place the license in a higher fee category or add a new fee
  category must be accompanied by the prescribed application fee for
  each category.
(1) Applications for licenses covering more than one fee category of
  special nuclear material or source material must be accompanied by the
  prescribed application fee for the highest fee category.
(2) Applications for new licenses that cover both byproduct material and
  special nuclear material in sealed sources for use in gauging devices
  will pay the appropriate application fee for fee Category 1.C. only.

[[Page 34240]]

 
(b) Licensing fees. Fees for reviews of applications for new licenses,
  renewals, and amendments to existing licenses, pre-application
  consultations and other documents submitted to the NRC for review, and
  project manager time for fee categories subject to full cost fees 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 an export or
  import license or approval classified in more than one fee category
  must be accompanied by the prescribed amendment fee for the category
  affected by the amendment, unless the amendment is applicable to two
  or more fee categories, in which case the amendment fee for the
  highest fee category would apply.
(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 9.A. through 9.D.
\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 when 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 for which costs exceed
  $50,000. Costs which exceed $50,000 for each topical report,
  amendment, revision, or supplement to a topical report completed or
  under review from January 30, 1989 through August 8, 1991 will not be
  billed to the applicant. Any professional hours expended on or after
  August 9, 1991 will be assessed at the applicable rate established in
  Sec.   170.20.
\4\ Licensees paying fees under Categories 1.A., 1.B., and 1.E. are not
  subject to fees under Categories 1.C. and 1.D. for sealed sources
  authorized in the same license, except for an application that deals
  only with the sealed sources authorized by the license.
\5\ For a combined import and export license application for material
  listed in Appendix P to part 110 of this chapter, only the higher of
  the two applicable fee amounts must be paid.
\6\ Persons who possess radium sources that are used for operational
  purposes in another fee category are not also subject to the fees in
  this category. (This exception does not apply if the radium sources
  are possessed for storage only.)

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
6. The authority citation for part 171 continues to read as follows:

    Authority: Section 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), and as amended by 
Title IV, Pub. L. 109-103, 119 Stat. 2283 (42 U.S.C. 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. 651(e), Pub. L. 109-58, 
119 Stat. 806-810 (42 U.S.C. 2014, 2021, 2021b, 2111).

0
7. In Sec.  171.15, paragraph (b)(1), the introductory text of 
paragraph (b)(2), paragraph (c)(1), the introductory text of paragraph 
(c)(2) and the introductory text of paragraph (d)(1), and paragraphs 
(d)(2), (d)(3), and paragraph (e), are revised to read as follows:


Sec.  171.15  Annual fees: Reactor licenses and independent spent fuel 
storage licenses.

* * * * *
    (b)(1) The FY 2010 annual fee for each operating power reactor 
which must be collected by September 30, 2010 is $4,784,000.
    (2) The FY 2010 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 (fee-
relief adjustment). The activities comprising the spent storage/reactor 
decommissioning base annual fee are shown in paragraphs (c)(2)(i) and 
(ii) of this section. The activities comprising the FY 2010 fee-relief 
adjustment are shown in paragraph (d)(1) of this section. The 
activities comprising the FY 2010 base annual fee for operating power 
reactors are as follows:
* * * * *
    (c)(1) The FY 2010 annual fee for each power reactor holding a 10 
CFR part 50 license that is in a decommissioning or possession-only 
status and has spent fuel onsite, and for each independent spent fuel 
storage 10 CFR part 72 licensee who does not hold a 10 CFR part 50 
license, is $148,000.
    (2) The FY 2010 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 (fee-relief adjustment). The 
activities comprising the FY 2010 fee-relief adjustment are shown in 
paragraph (d)(1) of this section. The activities comprising the FY 2010 
spent fuel storage/reactor decommissioning rebaselined annual fee are:
* * * * *
    (d)(1) The fee-relief adjustment allocated to annual fees includes 
a surcharge for the activities listed in paragraph (d)(1)(i) of this 
section, plus the amount remaining after total budgeted resources for 
the activities included in paragraphs (d)(1)(ii) and (d)(1)(iii) of 
this section are reduced by the appropriations the NRC receives for 
these types of activities. If the NRC's appropriations for these types 
of activities are greater than the budgeted resources for the 
activities included in paragraphs (d)(1)(ii) and (d)(1)(iii) of this 
section for a given FY, annual fees will be reduced. The activities 
comprising the FY 2010 fee-relief adjustment are as follows:
* * * * *
    (2) The total FY 2010 fee-relief adjustment allocated to the 
operating power reactor class of licenses is $7.5 million, not 
including the amount allocated to the spent fuel storage/reactor 
decommissioning class. The FY 2010 operating power reactor fee-relief 
adjustment to be assessed to each operating power reactor is 
approximately $72,200. This amount is calculated by dividing the total 
operating power reactor fee-relief adjustment ($7.5 million) by the 
number of operating power reactors (104).
    (3) The FY 2010 fee-relief adjustment allocated to the spent fuel 
storage/reactor decommissioning class of licenses is $194,250. The FY 
2010 spent fuel storage/reactor decommissioning fee-relief adjustment 
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

[[Page 34241]]

spent fuel storage 10 CFR part 72 licensee who does not hold a 10 CFR 
part 50 license, is approximately $1,579. This amount is calculated by 
dividing the total fee-relief adjustment 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 10 CFR part 
72 licensees who do not hold a 10 CFR part 50 license.
    (e) The FY 2010 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--$81,700
    Test reactor--$81,700

0
8. In Sec. 171.16, the introductory text of paragraph (b), paragraphs 
(c) and (d), and the introductory text of paragraph (e) are revised to 
read as follows:


 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.

* * * * *
    (b) The annual fee is comprised of a base annual fee and an 
allocation for fee-relief adjustment. The activities comprising the 
fee-relief adjustment are shown in paragraph (e) of this section. The 
base annual fee is the sum of budgeted costs for the following 
activities:
* * * * *
    (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 receipt of a 
delinquent invoice requesting the outstanding balance due and/or 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
 (Average gross receipts over last 3 completed
 fiscal years):
    $450,000 to $6.5 million........................              $1,900
    Less than $450,000..............................                $400
Small Not-For-Profit Organizations (Annual Gross
 Receipts):
    $450,000 to $6.5 million........................              $1,900
    Less than $450,000..............................                $400
Manufacturing entities that have an average of 500
 employees or fewer:
    35 to 500 employees.............................              $1,900
    Fewer than 35 employees.........................                $400
Small Governmental Jurisdictions (Including publicly
 supported educational institutions) (Population):
    20,000 to 50,000................................              $1,900
    Fewer than 20,000...............................                $400
Educational Institutions that are not State or                    $1,900
 Publicly Supported, and have 500 Employees or Fewer
 35 to 500 employees................................
Fewer than 35 employees.............................                $400
------------------------------------------------------------------------

     (d) The FY 2010 annual fees are comprised of a base annual fee and 
an allocation for fee-relief adjustment. The activities comprising the 
FY 2010 fee-relief adjustment are shown for convenience in paragraph 
(e) of this section. The FY 2010 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          $5,439,000
         Enriched Uranium) [Program Code(s): 21130].....
        (b) Low Enriched Uranium in Dispersible Form          $2,047,000
         Used for Fabrication of Power Reactor Fuel
         [Program Code(s): 21210].......................
    (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 [Program         $702,000
         Code(s): 21310, 21320].........................
        (b) Gas centrifuge enrichment demonstration           $1,053,000
         facilities.....................................
        (c) Others, including hot cell facilities.......        $526,000
    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) [Program Code(s): 23200]......
    C. Licenses for possession and use of special                 $3,300
     nuclear material in sealed sources contained in
     devices used in industrial measuring systems,
     including x-ray fluorescence analyzers [Program
     Code(s): 22140]....................................
    D. All other special nuclear material licenses,               $9,300
     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) [Program Code(s): 22110, 22111, 22120,
     22131, 22136, 22150, 22151, 22161, 22163, 22170,
     23100, 23300, 23310]...............................
    E. Licenses or certificates for the operation of a        $2,807,000
     uranium enrichment facility [Program Code(s):
     21200].............................................
2. Source material:
    A. (1) Licenses for possession and use of source          $1,111,000
     material for refining uranium mill concentrates to
     uranium hexafluoride [Program Code(s): 11400]......

[[Page 34242]]

 
        (2) Licenses for possession and use of source
         material in recovery operations such as
         milling, in-situ recovery, 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) Conventional and Heap Leach facilities           $38,300
             [Program Code(s): 11100]...................
            (b) Basic In Situ Recovery facilities                $36,300
             [Program Code(s): 11500]...................
            (c) Expanded In Situ Recovery facilities             $41,100
             [Program Code(s): 11510]...................
            (d) In Situ Recovery Resin facilities                $34,400
             [Program Code(s): 11550]...................
            (e) Resin Toll Milling facilities [Program           \5\ N/A
             Code(s): 11555]............................
            (f) Other facilities \4\ [Program Code(s):           \5\ N/A
             11700].....................................
        (3) Licenses that authorize the receipt of               \5\ N/A
         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
         2.A.(2) or Category 2.A.(4) [Program Code(s):
         11600, 12000]..................................
        (4) Licenses that authorize the receipt of               $12,400
         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 2.A.(2) [Program Code(s): 12010]......
        (5) Licenses that authorize the possession of             $8,600
         source material related to removal of
         contaminants (source material) from drinking
         water [Program Code(s): 11820].................
    B. Licenses that authorize only the possession, use,          $1,600
     and/or installation of source material for
     shielding [Program Code(s): 11210].................
    C. All other source material licenses [Program               $21,100
     Code(s): 11200, 11220, 11221, 11230, 11300, 11800,
     11810].............................................
3. Byproduct material:
    A. Licenses of broad scope for possession and use of         $49,100
     byproduct material issued under parts 30 and 33 of
     this chapter for processing or manufacturing of
     items containing byproduct material for commercial
     distribution [Program Code(s): 03211, 03212, 03213]
    B. Other licenses for possession and use of                  $12,700
     byproduct material issued under part 30 of this
     chapter for processing or manufacturing of items
     containing byproduct material for commercial
     distribution [Program Code(s): 03214, 03215, 22135,
     22162].............................................
    C. Licenses issued under Sec.  Sec.   32.72 and/or           $16,600
     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
     3.D. [Program Code(s): 02500, 02511, 02513]........
    D. Licenses and approvals issued under Sec.  Sec.            $10,600
     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 [Program Code(s):
     02512, 02514]......................................
    E. Licenses for possession and use of byproduct               $8,200
     material in sealed sources for irradiation of
     materials in which the source is not removed from
     its shield (self-shielded units) [Program Code(s):
     03510, 03520]......................................
    F. Licenses for possession and use of less than              $15,500
     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 [Program Code(s):
     03511].............................................
    G. Licenses for possession and use of 10,000 curies          $76,800
     or more of byproduct material in sealed sources for
     irradiation of materials in which the source is
     exposed for irradiation purposes. This category
     also includes underwater irradiators for
     irradiation of materials in which the source is not
     exposed for irradiation purposes [Program Code(s):
     03521].............................................
    H. Licenses issued under Subpart A of part 32 of              $9,900
     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 [Program Code(s): 03254, 03255]............
    I. Licenses issued under Subpart A of part 32 of             $18,000
     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 [Program Code(s): 03250, 03251,
     03252, 03253, 03256]...............................
    J. Licenses issued under Subpart B of part 32 of              $4,200
     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
     [Program Code(s): 03240, 03241, 03243].............
    K. Licenses issued under Subpart B of part 32 of              $3,000
     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 [Program
     Code(s): 03242, 03244].............................

[[Page 34243]]

 
    L. Licenses of broad scope for possession and use of         $24,200
     byproduct material issued under parts 30 and 33 of
     this chapter for research and development that do
     not authorize commercial distribution [Program
     Code(s): 01100, 01110, 01120, 03610, 03611, 03612,
     03613].............................................
    M. Other licenses for possession and use of                   $9,100
     byproduct material issued under part 30 of this
     chapter for research and development that do not
     authorize commercial distribution [Program Code(s):
     03620].............................................
    N. Licenses that authorize services for other                $13,800
     licensees, except: (1) Licenses that authorize only
     calibration and/or leak testing services are
     subject to the fees specified in fee Category 3.P.;
     and (2) Licenses that authorize waste disposal
     services are subject to the fees specified in fee
     categories 4.A., 4.B., and 4.C. [Program Code(s):
     03219, 03225, 03226]...............................
    O. Licenses for possession and use of byproduct              $28,200
     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
     [Program Code(s): 03310, 03320]....................
    P. All other specific byproduct material licenses,            $4,500
     except those in Categories 4.A. through 9.D.
     [Program Code(s): 02400, 02410, 03120, 03121,
     03122, 03123, 03124, 03220, 03221, 03222, 03800,
     03810, 22130]......................................
    Q. Registration of devices generally licensed under         \13\ N/A
     part 31 of this chapter............................
    R. Possession of items or products containing radium-
     226 identified in 10 CFR 31.12 which exceed the
     number of items or limits specified in that
     section: \14\
        1. Possession of quantities exceeding the number          $4,100
         of items or limits in 10 CFR 31.12(a)(4), or
         (5) but less than or equal to 10 times the
         number of items or limits specified [Program
         Code(s): 02700]................................
        2. Possession of quantities exceeding 10 times            $4,500
         the number of items or limits specified in 10
         CFR 31.12(a)(4), or (5) [Program Code(s):
         02710].........................................
    S. Licenses for production of accelerator-produced           $15,000
     radionuclides [Program Code(s): 03210].............
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 [Program Code(s): 03231,
     03233, 03235, 03236, 06100, 06101].................
    B. Licenses specifically authorizing the receipt of          $23,100
     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 [Program Code(s): 03234]...
    C. Licenses specifically authorizing the receipt of          $14,500
     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 [Program Code(s): 03232]
5. Well logging:
    A. Licenses for possession and use of byproduct              $11,900
     material, source material, and/or special nuclear
     material for well logging, well surveys, and tracer
     studies other than field flooding tracer studies
     [Program Code(s): 03110, 03111, 03112].............
    B. Licenses for possession and use of byproduct              \5\ N/A
     material for field flooding tracer studies [Program
     Code(s): 03113]....................................
6. Nuclear laundries:
    A. Licenses for commercial collection and laundry of         $42,900
     items contaminated with byproduct material, source
     material, or special nuclear material [Program
     Code(s): 03218]....................................
7. Medical licenses:
    A. Licenses issued under parts 30, 35, 40, and 70 of         $21,300
     this chapter for human use of byproduct material,
     source material, or special nuclear material in
     sealed sources contained in gamma stereotactic
     radiosurgery units, teletherapy devices, or similar
     beam therapy devices. This category also includes
     the possession and use of source material for
     shielding when authorized on the same license
     [Program Code(s): 02300, 02310]....................
    B. Licenses of broad scope issued to medical                 $45,100
     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\ [Program
     Code(s): 02110]....................................
    C. Other licenses issued under parts 30, 35, 40, and          $7,600
     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\ [Program Code(s): 02120,
     02121, 02200, 02201, 02210, 02220, 02230, 02231,
     02240, 22160]......................................
8. Civil defense:
    A. Licenses for possession and use of byproduct               $4,100
     material, source material, or special nuclear
     material for civil defense activities [Program
     Code(s): 03710]....................................
9. Device, product, or sealed source safety evaluation:
    A. Registrations issued for the safety evaluation of         $12,600
     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         $12,600
     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          $8,800
     sealed sources containing byproduct material,
     source material, or special nuclear material,
     except reactor fuel, for commercial distribution...

[[Page 34244]]

 
    D. Registrations issued for the safety evaluation of          $1,500
     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........................         \6\ N/A
        2. Users........................................         \6\ N/A
    C. Evaluation of security plans, route approvals,            \6\ N/A
     route surveys, and transportation security devices
     (including immobilization devices).................
11. Standardized spent fuel facilities..................         \6\ N/A
12. Special Projects....................................         \6\ N/A
13. A. Spent fuel storage cask Certificate of Compliance         \6\ N/A
    B. General licenses for storage of spent fuel under         \12\ N/A
     10 CFR 72.210......................................
14. Decommissioning/Reclamation:
    A. Byproduct, source, or special nuclear material            \7\ N/A
     licenses and other approvals authorizing
     decommissioning, decontamination, reclamation, or
     site restoration activities under parts 30, 40, 70,
     72, and 76 of this chapter.........................
    B. Site-specific decommissioning activities                  \7\ N/A
     associated with unlicensed sites, whether or not
     the sites have been previously licensed............
15. Import and Export licenses..........................         \8\ N/A
16. Reciprocity.........................................         \8\ N/A
17. Master materials licenses of broad scope issued to          $234,000
 Government agencies....................................
18. Department of Energy:
    A. Certificates of Compliance.......................   \10\ $861,000
    B. Uranium Mill Tailings Radiation Control Act              $590,000
     (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 FY. 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, 2009, and permanently ceased licensed activities
  entirely before this date. Annual fees for licensees who filed for
  termination of a license, downgrade of a license, or for a possession-
  only license during the FY and for new licenses issued during the FY
  will be prorated in accordance with the provisions of Sec.   171.17.
  If a person holds more than one license, certificate, registration, or
  approval, the annual fee(s) will be assessed for each license,
  certificate, registration, or approval held by that person. For
  licenses that authorize more than one activity on a single license
  (e.g., human use and irradiator activities), annual fees will be
  assessed for each category applicable to the license. Licensees paying
  annual fees under Category 1.A.(1) are not subject to the annual fees
  for Categories 1.C. and 1.D. for sealed sources authorized in the
  license.
\2\ Payment of the prescribed annual fee does not automatically renew
  the license, certificate, registration, or approval for which the fee
  is paid. Renewal applications must be filed in accordance with the
  requirements of parts 30, 40, 70, 71, 72, or 76 of this chapter.
\3\ Each FY, 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\ Other facilities include 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 related Quality Assurance program
  approvals, 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 that also hold nuclear medicine
  licenses under Categories 7.B. or 7.C.
\10\ This includes Certificates of Compliance issued to the Department
  of Energy that are not funded from 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.
\14\ Persons who possess radium sources that are used for operational
  purposes in another fee category are not also subject to the fees in
  this category. (This exception does not apply if the radium sources
  are possessed for storage only.)

    (e) The fee-relief adjustment allocated to annual fees includes the 
budgeted resources for the activities listed in paragraph (e)(1) of 
this section, plus the total budgeted resources for the activities 
included in paragraphs (e)(2) and (e)(3) of this section, as reduced by 
the appropriations NRC receives for these types of activities. If the 
NRC's appropriations for these types of activities are greater than the 
budgeted resources for the activities included in paragraphs (e)(2) and 
(e)(3) of this section for a given FY, a negative fee-relief adjustment 
(or annual fee reduction) will be allocated to annual fees. The 
activities comprising the FY 2010 fee-relief adjustment are as follows:
* * * * *

    Dated at Rockville, Maryland, this 28th day of May 2010.

For the Nuclear Regulatory Commission.
J.E. Dyer,
Chief Financial Officer.

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


[[Page 34245]]



Appendix A to This Final Rule--Regulatory Flexibility Analysis for the 
Final Amendments to 10 CFR Part 170 (License Fees) and 10 CFR Part 171 
(Annual Fees)

I. Background

    The Regulatory Flexibility Act (RFA), as amended at 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 standards 
were based on the Small Business Administration's most common 
receipts-based size standards and provides 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 rule are 
based on the NRC's size standards.
    The NRC is required each year, under OBRA-90, as amended, to 
recover approximately 90 percent of its budget authority (less 
amounts appropriated from the NWF and for other activities 
specifically removed from the fee base), through fees to NRC 
licensees and applicants. In total, the NRC is required to bill 
approximately $911.1 million in fees for FY 2010.
    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 the NRC in identifying and determining the fees 
to be assessed and collected in any given FY.
    The Commission is proposing to rebaseline its 10 CFR part 171 
annual fees in FY 2010. Rebaselining fees results in higher annual 
fees for five classes of licensees (power reactors, spent fuel 
storage/reactor decommissioning, transportation, uranium recovery 
and materials users), and lower for one class of licensees (non-
power reactors). Within the fuel facilities fee class, annual fees 
for most licensees increase, while the annual fee for one fee 
category decreases.
    The Small Business Regulatory Enforcement Fairness Act (SBREFA) 
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.
    The SBREFA also requires that an agency prepare a guide to 
assist small entities in complying with each rule for which a final 
RFA is prepared. As required by law, this analysis and the small 
entity compliance guide (Attachment 1) have been prepared for the FY 
2010 fee rule, as required by law.

II. Impact on Small Entities

    The fee rule results in substantial fees charged to those 
individuals, organizations, and companies licensed by the NRC, 
including those licensed under the NRC materials program. Comments 
received on previous proposed fee rules and the small entity 
certifications in response to previous final fee rules indicate that 
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 fees on materials 
licensees. In FY 2009, about 26 percent of these licensees 
(approximately 1,000 licensees) qualified as small entities.
    Commenters on previous fee rulemakings consistently indicated 
that the following 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 identical for both small and large firms.
    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 abandon the 
materials license altogether. Commenters estimated that the proposed 
rule would cause roughly 10 percent of the well-logging licensees to 
terminate their licenses immediately and approximately 25 percent to 
terminate 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 difficult for some 
facilities to meet.
    Over 3,000 licenses, approvals, and registration terminations 
have been requested since the NRC first established annual fees for 
materials licenses. Although some terminations were requested 
because the license was no longer needed or could be combined with 
registrations, indications are that the economic impact of the fees 
caused other terminations.
    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 frequency of use of licensed radioactive 
material (e.g., volume of patients).
    3. Base fees on the NRC size standards for small entities.
    The NRC has reexamined its previous evaluations of these 
alternatives and continues to believe that a maximum fee for small 
entities is the most appropriate and effective option for reducing 
the impact of fees on small entities.

III. Maximum Fee

    The SBREFA 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 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 10 CFR part 170 licensing 
and inspection fees and Agreement State fees for 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.
    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 would not exceed the maximum paid in the 
six benchmark Agreement States.
    Of the six benchmark states, the NRC used Washington's maximum 
Agreement State fee of $3,800 as the ceiling for total fees. Thus 
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,

[[Page 34246]]

as well as changes in the fee structure for materials licensees. The 
structure of fees NRC charged 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. Because of 
the 25 percent increase, in FY 2000 the maximum small entity annual 
fee increased from $1,800 to $2,300. However, despite the increase, 
total fees for many small entities were reduced because they no 
longer paid part 170 fees. Costs not recovered from small entities 
were 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 
could continue to have a significant impact on materials licensees 
with relatively low annual gross receipts. Therefore, the NRC 
continued to provide the lower-tier small entity annual fee for 
small entities with relatively low gross annual receipts, 
manufacturing concerns, and for educational institutions not State 
or publicly supported with fewer than 35 employees. The NRC also 
increased the lower tier small entity fee by 25 percent, the same 
percentage increase to the maximum small entity annual fee, 
resulting in the lower tier small entity fee increasing from $400 to 
$500 in FY 2000.
    The NRC stated in the RFA 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 Chief Financial Officers Act. Accordingly, the NRC examined 
the small entity fees again in FY 2003 and FY 2005, determining that 
a change was not warranted to those fees established in FY 2001.
    As part of the small entity review in FY 2007, the NRC also 
considered whether it should establish reduced fees for small 
entities under part 170. The NRC received one comment requesting 
that small entity fees be considered for certain export licenses, 
particularly in light of the recent increases to part 170 fees for 
these licenses. Because the NRC's part 170 fees are not assessed to 
a licensee or applicant on a regular basis (i.e., they are only 
assessed when a licensee or applicant requests a specific service 
from the NRC), the NRC does not believe that the impact of its part 
170 fees warrants a fee reduction for small entities, in addition to 
the part 171 small entity fee reduction. Regarding export licenses, 
the NRC notes that interested parties can submit a single 
application for a broad scope, multi-year license that permits 
exports to multiple countries. Because the NRC charges fees per 
application, this process minimizes the fees for export applicants. 
Because a single NRC fee can cover numerous exports, and because 
there are a limited number of entities who apply for these licenses, 
the NRC does not anticipate that the part 170 export fees will have 
a significant impact on a substantial number of small entities. 
Therefore, the NRC retained the $2,300 small entity annual fee and 
the $500 lower tier small entity annual fee for FY 2007 and FY 2008.
    The NRC conducted an in-depth biennial review of the FY 2009 
small entity fees. The review noted significant changes between FY 
2000 and FY 2008 in both the external and internal environment which 
impacted fees for NRC's small materials users licensees. Since FY 
2000, small entity licensees in the upper tier had increased 
approximately 53 percent. In addition, due to changes in the law, 
NRC is now only required to recover 90 percent of its budget 
authority compared to 100 percent recovery required in FY 2000. This 
ten percent fee relief has influenced the small materials users' 
annual fees. A decrease in the NRC's budget allocation to the small 
materials users also influenced annual fees in FY 2007 and FY 2008.
    Based on the review, the NRC changed the methodology for 
reviewing small entity fees. The NRC determined the maximum small 
entity fee should be adjusted each biennial year using a fixed 
percentage of 39 percent applied to the prior two-year weighted 
average of small materials users fees for all fee categories which 
have small entity licensees. The 39 percent was based on the small 
entity annual fee for FY 2005, which was the first year the NRC was 
required to recover only 90 percent of its budget authority. The FY 
2005 small entity annual fee of $2,300 was 39 percent of the two-
year weighted average for all fee categories in FY 2005 and FY 2006 
that had an upper tier small entity licensee. The new methodology 
allows small entity licensees to be able to predict changes in their 
fee in the biennial year based on the small materials fees for the 
previous two years. Using a two-year weighted average smoothes the 
fluctuations caused by programmatic and budget variables and 
reflects the importance of the fee categories with the majority of 
small entities. The agency also determined the lower tier annual fee 
should remain at 22 percent of the maximum small entity annual fee.
    Therefore, for FY 2009 the NRC decreased the maximum small 
entity fee from $2,300 to $1,900 and decreased the lower tier annual 
fee from $500 to $400. The NRC is not making any changes to these 
fees in FY 2010 and plans to re-examine the small entity fees again 
in FY 2011.

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 $1,900 for small entities 
and a lower-tier small entity annual fee of $400 for small 
businesses and not-for-profit organizations with gross annual 
receipts of less than $450,000, small governmental jurisdictions 
with a population of fewer than 20,000, small manufacturing entities 
that have fewer than 35 employees, and educational institutions that 
are not State or publicly supported and have fewer 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 
2010.

Attachment 1 to Appendix A--U.S. Nuclear Regulatory Commission Small 
Entity Compliance Guide; Fiscal Year 2010

Contents

Introduction
NRC Definition of Small Entity

NRC Small Entity Fees
Instructions for Completing NRC Form 526

Introduction

    The Congressional Review Act 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 the Congressional Review Act. 
Therefore, in compliance with the law, this guide has been prepared 
to assist NRC materials licensees in complying with the FY 2010 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 2010 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 
(listed in 10 CFR 2.810) 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 
``Business with NRC,'' then ``NRC Forms,'' selecting NRC Form 526. 
For licensees who cannot access the NRC's Web site, NRC Form 526 may 
be obtained through the local point of contact listed in the NRC's 
``Materials Annual Fee Billing Handbook,'' NUREG/BR-0238, which is 
enclosed with each annual fee billing. Alternatively, the form may 
be obtained by calling the fee staff at 301-415-7554, or by e-
mailing the fee staff at [email protected]. The completed form, 
the appropriate small entity fee, and the payment copy of the 
invoice should be mailed to the U.S. Nuclear Regulatory Commission, 
Accounts Receivable/Payable Branch, 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 $6.5 million or less over its last 3 
completed fiscal years;

[[Page 34247]]

    (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 
$6.5 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 fewer 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 include 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, including 
a foreign 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 Businesses Not Engaged in Manufacturing (Average
 gross receipts over last 3 completed fiscal years):
    $450,000 to $6.5 million..........................            $1,900
    Less than $450,000................................              $400
Small Not-For-Profit Organizations (Annual Gross
 Receipts):
    $450,000 to $6.5 million..........................            $1,900
    Less than $450,000................................              $400
    Manufacturing entities that have an average of 500            $1,900
     employees or fewer:..............................
    35 to 500 employees...............................
    Fewer than 35 employees...........................              $400
Small Governmental Jurisdictions (Including publicly
 supported educational institutions) (Population):
    20,000 to 50,000..................................            $1,900
    Fewer than 20,000.................................              $400
Educational Institutions that are not State or
 Publicly Supported, and have 500 Employees or Fewer
    35 to 500 employees...............................            $1,900
    Fewer than 35 employees...........................              $400
------------------------------------------------------------------------

Instructions for Completing NRC Small Entity Form 526

    1. Complete all items on NRC Form 526 as follows: (Note: 
Incomplete or improperly completed forms will be returned as 
unacceptable.)
    (a) Enter the license number and invoice number exactly as they 
appear on the annual fee invoice.
    (b) Enter the North American Industry Classification System 
(NAICS).
    (c) Enter the licensee's name and address exactly as they appear 
on the invoice. Annotate name and/or address changes for billing 
purposes on the payment copy of the invoice--include contact's name, 
telephone number, e-mail address, and company Web site address. 
Correcting the name and/or address on NRC Form 526 or on the invoice 
does not constitute a request to amend the license.
    (d) Check the appropriate size standard under which the licensee 
qualifies as a small entity. Check one box only. Note the following:
    (i) A licensee who is a subsidiary of a large entity, including 
foreign entities, does not qualify as a small entity. The 
calculation of a firm's size includes the employees or receipts of 
all affiliates. Affiliation with another concern is based on the 
power to control, whether exercised or not. Such factors as common 
ownership, common management, and identity of interest (often found 
in members of the same family), among others, are indications of 
affiliation. The affiliated business concerns need not be in the 
same line of business.
    (ii) Gross annual receipts, as used in the size standards, 
include all revenue received or accrued by your company from all 
sources, regardless of the form of the revenue and not solely 
receipts from licensed activities.
    (iii) NRC's size standards on a small entity are based on the 
Small Business Administration's regulations (13 CFR part 121).
    (iv) The size standards apply to the licensee, not to the 
individual authorized users who may be listed in the license.
    2. If the invoice states the ``Amount Billed Represents 50% 
Proration,'' the amount due is not the prorated amount shown on the 
invoice but rather one-half of the maximum small entity annual fee 
shown on NRC Form 526 for the size standard under which the licensee 
qualifies (either $950 or $200) for each category billed.
    3. If the invoice amount is less than the reduced small entity 
annual fee shown on this form, pay the amount on the invoice; there 
is no further reduction. In this case, do not file NRC Form 526. 
However, if the invoice amount is greater than the reduced small 
entity annual fee, file NRC Form 526 and pay the amount applicable 
to the size standard you checked on the form.
    4. The completed NRC Form 526 must be submitted with the 
required annual fee payment and the ``Payment Copy'' of the invoice 
to the address shown on the invoice.
    5. 10 CFR 171.16(c)(3) states licensees shall submit a new 
certification with its annual fee payment each year. Failure to 
submit NRC Form 526 at the time the annual fee is paid will require 
the licensee to pay the full amount of the invoice.
    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 $1,900 or $400 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

[[Page 34248]]

of the annual fee for that year. Such invoices state that the 
``amount billed represents 50% proration.''
    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 NRC 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, Accounts Receivable/Payable Branch, 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. 2010-14069 Filed 6-15-10; 8:45 am]
BILLING CODE 7590-01-P